[Cite as Davila v. Cecchini, 2019-Ohio-2317.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 EDWIN DAVILA                                   :   JUDGES:
                                                :
                                                :   Hon. John W. Wise, P.J.
        Plaintiff-Appellant                     :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Earle E. Wise, Jr., J.
 -vs-                                           :
                                                :   Case No. 2018CA00133
                                                :
 GAETANA MATTIOLI CECCHINI, ET                  :
 AL.                                            :
                                                :
                                                :
        Defendants-Appellees                    :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Stark County Court of
                                                    Common Pleas, Case No.
                                                    2016CV01691



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             June 10, 2019




APPEARANCES:

 For Plaintiff-Appellant:                           For Defendant-Appellee:

 EDWIN DAVILA, PRO SE                               J. MICHAEL GATIEN
 333 Erie Street South, #325                        2371 Chestnut Hill St. NW
 Massillon, OH 44648                                North Canton, OH 44720
Stark County, Case No. 2018CA00133                                                         2

Delaney, J.

       {¶1} Plaintiff-Appellant Edwin Davila appeals the August 6, 2018 judgment entry

of the Stark County Court of Common Pleas.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} Plaintiff-Appellant Edwin Davila was hired by Avanti Corporation in 2001.

The principal of the company, Defendant Gaetano Cecchini, approached Davila and

invited him to work for Avanti, though the recitation of facts in Davila's complaint revealed

that many of the duties he assumed were personal services for Cecchini. Davila stated

he “agreed to work for Cecchini and began employment with Avanti in that spring of 2001.”

(Amended Complaint, paragraph 12). The complaint described an employee handbook

that would govern the “relationship between the employment (sic) between the plaintiff

and Avanti during the term of the employment” (Amended Complaint, paragraph 13), but

it also stated that his duties would include “responsibilities which may be assigned to him

on an ad hoc basis by Cecchini, individually, or through his companies. (Amended

Complaint, paragraph 15). Finally, the complaint alleged Davila was “also involved with

assisting Cecchini with resolving his improper relationships with certain female

employees.” (Amended Complaint, paragraph 16).

       {¶3} Defendant-Appellee Jennifer Simpson is the former wife of Cecchini. Davila

argued that during settlement negotiations of the contested divorce between Simpson

and Cecchini, Simpson requested that Cecchini terminate Davila's employment with

Avanti and all of Cecchini's companies. Davila’s employment with Avanti was terminated

on December 13, 2015 and Davila argued his termination was the direct result of

Simpson’s request. Cecchini stated Davila’s termination was due to “the distressed
Stark County, Case No. 2018CA00133                                                        3


financial condition of Avanti Corporation and Cecchini Enterprises.” (Amended Complaint,

paragraph 26).Davila offered documents to support his contention, which he described

as two letters from an attorney representing Simpson in the divorce and a responsive

letter from Cecchini. Davila also offered a memorandum he drafted after hearing a

telephone conversation purportedly between Simpson and Cecchini. The letters were not

authenticated by their purported authors and the letter attributed to Cecchini were not

signed. Davila offered nothing to authenticate the identity of the party who spoke with

Cecchini during the phone call.

       {¶4} Davila also submitted his affidavit containing descriptions of two telephone

conversations he witnessed between Cecchini and Simpson, one dated August 2015 and

one dated November 2015, in which he contended that Simpson insisted Davila's

termination was a critical part of any settlement of the pending complaint for divorce.

Davila recalled that Cecchini did not agree with Simpson, but told her they would talk

about it later. The identity of the other person on the phone during the calls was not

authenticated pursuant to Evid.R. 901(B)(6).

       {¶5} Davila filed a complaint on April 25, 2016 in the Cuyahoga County Court of

Common Pleas and named Cecchini, Avanti Corporation, and Cecchini, Inc. as

defendants. In his complaint, Davila alleged claims of breach of contract, interference with

constitutional rights, defamation, and intimidation of a witness. The defendants moved for

a change of venue to Stark County on May 27, 2016. After the exchange of several

pleadings, the court granted the motion on July 15, 2016.

       {¶6} The case was scheduled for a telephonic pretrial conference on September

6, 2016. At the conference the trial court set deadlines and included within its order the
Stark County, Case No. 2018CA00133                                                         4


following language: “plaintiff to strike extraneous statements from complaint within 30

days.” No explanation is contained within the record regarding the trial court's intent.

Davila filed an amended complaint on October 5, 2016 and named Simpson as a

defendant. His amended complaint included a quote from Dante’s Inferno and alleged

claims of tortious interference with an employment contract, malicious refusal to pay

medical bills incurred in connection with work related injury, breach of contract, unjust

enrichment, fraud, breach of employment agreement, spoliation of evidence, interference

with constitutional rights, defamation, intimidation of a witness, and violations of the Ohio

Corrupt Activity Statutes.

       {¶7} On November 1, 2016, Davila dismissed all claims against Cecchini, Avanti

Corporation and Cecchini, Inc., leaving Simpson as the remaining defendant. Against

Simpson, Davila claimed tortious interference with an employment contract.

       {¶8} Simpson filed an answer and counterclaim on January 17, 2017, alleging

Davila’s amended complaint was frivolous under Civ.R. 11 and R.C. 2323.51. On April

18, 2017, Davila filed a motion to disqualify Simpson's trial counsel, claiming Davila

planned to call him as a witness. Simpson opposed the motion and filed a motion for leave

to file an amended answer. The motion requesting leave to file an amended answer was

granted. Prior to the trial court issuing a ruling on the motion to disqualify, new counsel

entered an appearance on behalf of Simpson on May 12, 2017, making the motion to

disqualify moot.

       {¶9} Simpson filed her amended answer on May 12, 2017 and scheduled the

deposition of Davila. Davila's deposition was completed on June 1, 2017 and filed with

the court on July 10, 2017.
Stark County, Case No. 2018CA00133                                                       5


       {¶10} On July 10, 2017, Simpson filed a motion requesting a protective order

regarding the sealed final decree of divorce and agreed judgment entry executed by

Simpson and Cecchini. Simpson requested the trial court review the documents in

camera to determine whether an agreement to terminate Davila appeared in those

documents. Simpson also requested that the documents remain sealed and that the

Davila not be permitted to review them.

       {¶11} On July 17, 2017, Davila filed his opposition to the Simpson's motion, but

Davila did not serve Simpson with any discovery requests seeking a copy of the decree

or an opportunity to review it. Davila asserted that the decree was irrelevant, but did not

object to the use of the decree in support of the motion for summary judgment and did

not file a motion to strike the decree from the record.

       {¶12} On August 9, 2017, the trial court found that “plaintiff has not requested the

divorce settlement agreement in discovery.” The Court further concluded “the court has

conducted a review of the document and find (sic) the same shall not be disclosed to

Plaintiff. Accordingly the motion for protective order is granted.”

       {¶13} Both parties filed motions for summary judgment on July 10, 2017,

supported with affidavits, memoranda opposing the motions and replies. The trial court

issued a ruling on August 9, 2017, granting Simpson's motion for summary judgment and

finding Davila's motion moot. The trial court found that while correspondence between

Simpson and Cecchini’s divorce counsel discussed settlement proposals including

Simpson’s desire that Davila’s employment be terminated, the Final Divorce Decree and

Agreed Judgment Entry did not include terms related to Davila’s employment. It further

found Davila was a discretionary employee and could be terminated without cause. Davila
Stark County, Case No. 2018CA00133                                                         6


failed to present case law to support his argument that liability should be imposed on an

employer’s estranged spouse for the employer’s decision to terminate his employee.

       {¶14} The parties exchanged several memoranda regarding motions in limine

involving the Davila's criminal history as well as a motion to strike any references to that

history from the record and to strike comments made by Simpson's counsel. These

motions remained unresolved as they became moot when the motion for summary

judgment was granted.

       {¶15} On September 5, 2017, Davila appealed the trial court’s summary judgment

to this Court in Davila v. Simpson, 2018-Ohio-946, 108 N.E.3d 628 (5th Dist.). On

September 7, 2017, Simpson filed a motion for frivolous conduct against Davila. In her

motion, she requested attorney fees, deposition costs, and court costs. Davila filed a

response, arguing Simpson admitted she interfered with Davila’s employment.

       {¶16} On March 12, 2018, we affirmed the judgment of the trial court in Davila v.

Simpson, supra, stating:

       We find, therefore, that in addition to the reasons set forth by the trial court,

       summary judgment is appropriate because, in construing all of the

       appropriate documentation in a light most favorable to appellant, there are

       no genuine issues of material fact with regard to proximate cause and

       appellee is entitled to judgment as a matter of law as a result of the lack of

       any evidence establishing a causal connection between the alleged acts of

       the appellee and the termination of appellant.

Id. at ¶ 49.
Stark County, Case No. 2018CA00133                                                        7


       {¶17} After we affirmed the judgment of the trial court, Simpson filed a

supplemental motion for frivolous conduct on April 12, 2018, wherein she renewed and

supplemented her original motion against Davila.

       {¶18} The trial court granted Simpson’s motion for frivolous conduct on June 19,

2018. The trial court found the conduct upon which Davila based his claims consisted of

allegations or other factual contentions that had no evidentiary support. The matter was

set for a hearing to determine the appropriate sanctions.

       {¶19} On July 12, 2018, Davila filed a motion to dismiss the motion for frivolous

conduct based on lack of jurisdiction. He argued that pursuant to R.C. 2323.51, the April

12, 2018 motion was filed beyond the 30-day time limit.

       {¶20} An evidentiary hearing on the motion for frivolous conduct was held on July

12, 2018. Simpson presented testimony from the three attorneys that assisted her with

this action and submitted their invoices into evidence. Simpson initially retained Attorney

Susan Pritchard to review Davila’s complaint. Pritchard testified she invoiced Simpson

fees in the amount of $490, which was charged based on an hourly rate of $280. Attorney

Stanley Rubin testified he was next retained by Simpson, but withdrew after Davila filed

a motion to disqualify her counsel. Rubin worked for 15.1 hours and charged $350.00 per

hour. The total charges were $5,285.00 but he gave Simpson a courtesy discount,

reducing his fee to $2,500.00. Simpson also paid Rubin $93.00 in court costs. After Rubin

withdrew from the case, Simpson hired Attorney Michael Gatien. Gatien testified he

charged $300.00 per hour and his total hours were 49.2, for total attorney fees of $14,760.

Transcript costs were $473.45. As to the reasonableness of the hours spent and the

hourly rate charged, Simpson asked the trial court to take judicial notice. Davila objected.
Stark County, Case No. 2018CA00133                                                        8


At the conclusion of the evidence, the trial court found the attorney fees were reasonable

and appropriate.

       {¶21} The trial court memorialized its findings via judgment entry filed August 6,

2018. It awarded a total of $17,843.00 to Simpson against Davila. The trial court further

denied Davila’s motion to dismiss for lack of jurisdiction.

       {¶22} It is from this judgment Davila now appeals.

                               ASSIGNMENTS OF ERROR

       {¶23} Davila raises two Assignments of Error:

       {¶24} “I. THE TRIAL COURT SHOULD HAVE DENIED THE APPELLEE’S

MOTION FOR FRIVOLOUS CONDUCT BECAUSE THE MOTION FOR SANCTIONS

WAS FILED BEYOND THE THIRTY DAYS MANDATED BY R.C. 2323.51.

       {¶25} “II. THE TRIAL COURT ERRED BY AWARDING ATTORNEY FESS IN

THE ABSENCE OF PROOF OF THE REASONABLENESS OF ATTORNEY FEES AS

REQUIRED BY R.C. 2323.51.”

                                        ANALYSIS

                                      I. Timely Filed

       {¶26} Davila argues in his first Assignment of Error the trial court erred in denying

his motion to dismiss Simpson’s claim for frivolous conduct as untimely filed. We

disagree.

       {¶27} On August 9, 2017, the trial court granted Simpson’s motion for summary

judgment and denied Davila’s motion for summary judgment as moot. Simpson voluntarily

dismissed her counterclaim, without prejudice, on August 14, 2017. On September 5,

2017, Davila filed his appeal of the August 9, 2017 judgment. Simpson filed her motion
Stark County, Case No. 2018CA00133                                                       9


for frivolous conduct judgment on September 7, 2017. The trial court did not rule on

Simpson’s motion for frivolous conduct judgment because trial court case was stayed

pending appeal in Davila v. Simpson, supra. Our opinion affirming the trial court’s

judgment was filed on March 12, 2018. On April 12, 2018, Simpson filed a renewed and

supplemental motion for frivolous conduct. The trial court granted the motion on June 19,

2018. Davila filed his motion to dismiss on July 12, 2018, arguing Simpson’s April 12,

2018 renewed motion for frivolous conduct judgment was untimely filed.

       {¶28} Davila’s argument that Simpson’s motion for frivolous conduct judgment

was untimely filed was based on R.C. 2323.51(B)(1). The statute reads:

       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.

R.C. 2323.51(B)(1). Davila stated Simpson’s motion for frivolous conduct was untimely

filed pursuant to R.C. 2323.51(B)(1) because she filed her motion for frivolous conduct

on April 12, 2018, 30 days after our decision was filed in Davila v. Simpson, supra.
Stark County, Case No. 2018CA00133                                                         10


       {¶29} We find Davila’s argument to be not well taken because the April 12, 2018

motion for frivolous conduct was not the original filing. After the trial court granted

summary judgment in favor of Simpson on August 9, 2017, Simpson filed her original

motion on September 7, 2017, requesting a determination that Davila engaged in frivolous

conduct. This was 29 days after the trial court’s summary judgment ruling. Davila filed his

notice of appeal of the trial court’s judgment on September 5, 2017. Based on Davila’s

appeal, the matters pending in the trial court were stayed until the resolution of the appeal.

Our Court issued its ruling on March 12, 2018. On April 12, 2018, Simpson filed a

supplemental motion for frivolous conduct, wherein she stated she renewed and

supplemented her original motion for frivolous conduct.

       {¶30} After the appeal was resolved, the trial court regained jurisdiction to

consider pending motions, which included the September 7, 2017 motion for frivolous

conduct. We find Simpson timely filed her original motion for frivolous conduct on

September 7, 2017, 29 days after the trial court entered a final judgment.

       {¶31} Davila’s first Assignment of Error is overruled.

                          II. Reasonableness of Attorney Fees

       {¶32} Davila argues in his second Assignment of Error that the trial court erred in

awarding attorney fees in the absence of proof of the reasonableness of the fees as

required by R.C. 2323.51. A motion for sanctions brought under R.C. 2323.51 requires a

three-step analysis by the trial court. The trial court must determine (1) whether the party

engaged in frivolous conduct, (2) if the conduct was frivolous, whether any party was

adversely affected by it, and (3) if an award is to be made, the amount of the award.

Martell v. Martell, 5th Dist. Stark No. 2018CA00017, 2018-Ohio-4927, 2018 WL 6446618,
Stark County, Case No. 2018CA00133                                                        11

¶ 41 citing Bear v. Troyer, 5th Dist. Guernsey Nos. 15 CA 17, 15 CA 24, 2016-Ohio-3363,

¶ 55. Davila does not argue on appeal the trial court erred in finding he engaged in

frivolous conduct and Simpson was adversely affected by Davila’s frivolous conduct.

       {¶33} R.C. 2323.51(B)(1) provides a court may award court costs, reasonable

attorney fees, and other reasonable expenses incurred in connection with the civil action

or appeal to any party to the civil action or appeal who was adversely affected by frivolous

conduct. Martell, supra at ¶ 40. R.C. 2323.51(B)(3)(b) states that any award made

pursuant to R.C. 2323.51(B)(1) shall not exceed those fees that were reasonably incurred

by a party. In re Guardianship of Bakhtiar, 9th Dist. No. 16CA011036, 2018-Ohio-1764,

113 N.E.3d 24, 2018 WL 2105772, ¶ 27. Where a trial court has found the existence of

frivolous conduct, the decision whether or not to assess a penalty lies within the sound

discretion of the trial court. Harper v. Kandel, 5th Dist. Tuscarawas No. 2018 AP 02 0010,

2018-Ohio-3382, 2018 WL 4037406, ¶ 18 citing Wiltberger v. Davis, 110 Ohio App.3d 46,

52, 673 N.E.2d 268 (10th Dist.). A trial court exercises discretion in deciding to assess

attorney fees as a sanction for frivolous conduct. Carasalina LLC, 10th Dist. No. 14AP–

74, 2014-Ohio-5665, at ¶ 48. Moreover, a trial court has discretion to determine the

amount of attorney fees to award. Bear v. Troyer, 5th Dist. No. 15 CA 17, 2016-Ohio-

3363, ¶ 67; Wrinch v. Miller, 183 Ohio App.3d 445, 2009-Ohio-3862, ¶ 59 (9th Dist.);

Southard Supply, Inc. v. Anthem Contractors, Inc., 10th Dist. Franklin No. 16AP-545,

2017-Ohio-7298, 2017 WL 3602073, ¶ 43. Abuse of discretion requires more than simply

an error of law or judgment, implying instead the court's attitude is unreasonable, arbitrary

or unconscionable. Tracy v. Merrell-Dow Pharmaceuticals, Inc., 58 Ohio St.3d 147, 152,

569 N.E.2d 875 (1991).
Stark County, Case No. 2018CA00133                                                       12


       {¶34} “The burden of establishing that a party incurred reasonable attorney fees

because of the opposing party's frivolous conduct falls upon the moving party.” White v.

White, 2nd Dist. Montgomery No. 27011, 2016-Ohio-7628, 2016 WL 6575330, ¶ 14 citing

Grine v. Sylvania Schools Bd. of Edn., 6th Dist. Lucas No. L–06–1314, 2008–Ohio–1562,

¶ 65, citing In re Verbeck's Estate, 173 Ohio St. 557, 559, 184 N.E.2d 384 (1962). For the

moving party to prevail on a claim for attorney fees, she must demonstrate the fees were

reasonable and necessary. White, supra at ¶ 19 citing Donese v. Donese, 2d Dist. Greene

No.2000–CA–17, 2000 WL 1433872, *4 (Sept. 29, 2000), citing Thomas v. Thomas, 2d

Dist. Greene No. 94–CA–18, 1995 WL 137015, *9 (Mar. 31, 1995). See also Swanson v.

Swanson, 48 Ohio App.2d 85, 91–93, 355 N.E.2d 894 (8th Dist.1976). The record must

demonstrate facts upon which the reasonableness of the fee can be judged, including the

time and labor involved, the fee customarily charged, the nature and length of the

professional relationship with the client, and the parties' relative need and ability to

pay. Swanson, supra at 91–93. “At a minimum, * * * the record must contain some

evidence of the reasonableness of the fees.” (Citation omitted.) White, supra at ¶ 20 citing

Donese at *3.

       {¶35} The testimony of Simpson’s three attorneys demonstrated the attorneys’

hourly rates ranging from $280, $300, and $350, were customary and reasonable for the

area. Davila’s cross examination of the attorneys did not demonstrate the hourly rates of

the three local attorneys were not reasonable. Simpson’s second attorney charged an

hourly rate of $350 but reduced his invoice from $5,285.00 to $2,500.00. Davila cross

examined the attorneys as to the work completed on the matter, specifically whether the

work was duplicative of the other attorneys’ work. Simpson’s third attorney entered an
Stark County, Case No. 2018CA00133                                                      13


appearance on May 12, 2017 and completed much of the work on the case after her

second attorney withdrew from the matter on May 9, 2017. The third attorney’s invoice

reflects the work done to prepare the motion for summary judgment, conduct Davila’s

deposition, respond to discovery requests, prepare a protective order, and file a motion

for frivolous conduct. We find the record contains sufficient evidence of reasonableness

of the fees to demonstrate no abuse of discretion by the trial court to award attorney fees

and costs to Simpson.

       {¶36} Davila’s second Assignment of Error is overruled.

                                     CONCLUSION

       {¶37} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.,

Wise, John, P.J. and

Wise, Earle, J., concur.
