[Cite as Cooper v. Commercial Sav. Bank, 2015-Ohio-4131.]


                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                             WYANDOT COUNTY



TIMOTHY H. COOPER,
                                                            CASE NO. 16-14-04
        PLAINTIFF-APPELLANT,

       v.

COMMERCIAL SAVINGS BANK, ET AL.,                            OPINION

       DEFENDANTS-APPELLEES.


TIMOTHY H. COOPER,
                                                            CASE NO. 16-14-08
        PLAINTIFF-APPELLANT,

       v.

COMMERCIAL SAVINGS BANK, ET AL.,                            OPINION

       DEFENDANTS-APPELLEES.


               Appeal from Wyandot County Common Pleas Court
                          Trial Court No. 13-CV-0119

                        Judgment in 16-14-04 Affirmed
             Judgment in 16-14-08 Affirmed in Part, Reversed in Part

                           Date of Decision: October 5, 2015



APPEARANCES:

        Ambrose Moses, III for Appellant
Case No. 16-14-04 and 16-14-08


       John C. Nemeth for Appellees Commercial Savings Bank and Sean
       Martin

       Rick Marsh for Appellee Charles Bartholomew

WILLAMOWSKI, J.


       {¶1} Plaintiff-appellant Timothy Cooper (“Cooper”) brings this appeal

from the judgment of the Court of Common Pleas of Wyandot County granting

summary judgment to defendants-appellees Commercial Savings Bank (“CSB”),

Sean Martin (“Martin”), Charles Bartholomew (“Bartholomew”), and two sets of

John Doe attorneys (collectively known as “Appellees”). For the reasons set forth

below, the judgment in 16-14-04 is affirmed, the judgment in 16-14-08 is affirmed

in part and reversed in part.

       {¶2} On August 18, 2005, Cooper borrowed $334,175.00 from CSB to

purchase two commercial real estate parcels and signed a note payable to the bank.

Cooper v. Westerville, 5th Dist. Delaware No. 13 CAE 02 0011, 2013-Ohio-4652.

The note included the language required by R.C. 2323.13(D) to provide for a

“warrant of attorney to confess judgment.” Although the note does not indicate

where it was signed, the parties agree that it was signed in Franklin County, Ohio,

at a branch of CSB. Cooper Affidavit, ¶ 10-11. At all relevant times, Cooper was

a resident of Delaware County, Ohio. Id. at ¶9. The real property that is the

subject of the mortgage was located in Delaware County and the mortgage was

recorded in Delaware County.

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Case No. 16-14-04 and 16-14-08


       {¶3} On June 23, 2011, Cooper filed a complaint against the City of

Westerville and other defendants, including CSB, in Delaware County. Cooper, at

¶4. An amended complaint was then filed on July 18, 2011. Id. at ¶5. A second

amended complaint was filed on March 14, 2012. Id. at ¶ 7. On November 22,

2011, CSB filed a counterclaim against Cooper alleging that he had failed to make

payments as required by the note. Id. at ¶9. CSB subsequently filed for summary

judgment on its counterclaim. Id. at ¶10. On January 23, 2013, the trial court in

that case granted summary judgment to CSB. Id. Cooper appealed from that

judgment challenging the granting of summary judgment to CSB among other

things. Id. at ¶16. However, the appeal was rendered moot when Cooper sold the

real estate and paid off the judgment. Id. at ¶18.

       {¶4} On July 7, 2011, while the other case was pending in Delaware

County, CSB filed a complaint with Cooper as the defendant for judgment on the

note. Doc. 28 at 2. Martin was the attorney for CSB during this case. Doc. 1 at 3.

Bartholomew was the confessing attorney who “filed an answer confessing

judgment against Cooper” based upon the cognivit note. Id. The trial court

granted judgment in favor of CSB on the note on July 11, 2011. Doc. 28 at 4. On

July 15, 2011, Cooper filed a motion for relief from judgment pursuant to Civ.R.

60(B). Id. at 5. The trial court granted the motion on August 5, 2011, vacated the

cognovit judgment, and dismissed the case. Id.



                                         -3-
Case No. 16-14-04 and 16-14-08


           {¶5} On December 16, 2013, Cooper filed a complaint against Appellees.

Doc. 1. The complaint alleged that all parties had engaged in abuse of the legal

process, negligence, breach of statutory duty, civil conspiracy, misrepresentation,

fraud, and malicious civil prosecution. Doc. 1. Cooper also alleged that R.C.

2323.13 was unconstitutional as applied to him and other similarly situated

persons.1 Doc. 1. CSB and Martin filed answers to the complaint on January 3,

2014. Doc. 5 and 6. Bartholomew filed his answer on January 10, 2014. Doc. 7.

On January 24, 2014, Bartholomew filed a motion for summary judgment. Doc. 8.

           {¶6} On February 27, 2014, Cooper filed a motion for leave to amend his

complaint. Doc. 15. Martin and CSB filed motions in opposition to the motion on

March 17, 2014. Doc. 17. A supplemental memorandum in opposition was filed

on March 19, 104. Doc. 19. On March 21, 2014, Martin and CSB filed their

motions for summary judgment. On April 23, 2014, Cooper filed a response to all

the motions for summary judgment. Doc. 25. Bartholomew then filed on May 2,

2014, a motion to strike the response to his motion as being untimely. Doc. 26.

On May 5, 2014, CSB filed a reply to Cooper’s response to its motion for

summary judgment. Doc. 27. On June 3, 2014, the trial court entered judgment

granting summary judgment to Appellees. Doc. 28. A nunc pro tunc entry to the

June 3, 2014, entry was filed on June 9, 2014. Doc. 29. On July 2, 2014, Cooper




1
    Cooper also requested that the complaint be certified as a class action lawsuit. Doc. 1.

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Case No. 16-14-04 and 16-14-08


filed his notice of appeal from this judgment. Doc. 32. This was assigned

Appellate Case Number 16-14-04.

      {¶7} Prior to the filing of the notice of appeal, CSB and Martin filed

motions for sanctions against Cooper. Doc. 30. Bartholomew filed his motion for

sanctions against Cooper on June 23, 2014. Doc. 31. The above appeal was

stayed pending the ruling on these motions. App. R. 4(B)(2). On July 7, 2014,

Cooper filed memorandum contra to the motions for sanctions. Doc. 35. A

hearing was held on the motions on November 4, 2014. Tr. 1. On November 20,

2014, the trial court ordered that sanctions in the amount of $5,801.00 to CSB,

$5,765.00 to Martin, and $32,138.00 to Bartholomew. Doc. 61. The notice of

appeal from this judgment was filed on December 10, 2014. Doc. 67. This appeal

was assigned case number 16-14-08. On January 14, 2015, this court ordered that

the two appeals would be consolidated for the purpose of briefing and oral

arguments. Cooper raises the following assignments of error on appeal.

                          First Assignment of Error

      Civil Rule 15(A) provides that the court shall freely give leave to
      amend when justice so requires. Cooper moved the court for
      leave. The trial court erred when it did not freely give Cooper
      leave to amend his complaint to add third-party beneficiary
      claims, negligence per se, and other claims he had overlooked in
      filing his original complaint approximately 2 ½ months earlier.

                         Second Assignment of Error

      The trial court erred in granting summary judgment in favor of
      [CSB] on the basis of res judicata when the transactions and

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Case No. 16-14-04 and 16-14-08


      occurrences in this case are different than those that are the
      subject matter of CSB’s mortgage foreclosure.

                           Third Assignment of Error

      The trial court erred in granting summary judgment in favor of
      [Martin] (as a Creditor’s Attorney) and [Bartholomew] (as a
      Confessing Attorney) on the basis of attorney immunity when
      there is evidence of malice.

                          Fourth Assignment of Error

      The trial court erred and abused its discretion imposing Rule 11
      and/or R.C. 2323.51 sanctions upon [Moses] and [Cooper] for
      alleged frivolous conduct when [sic].

      {¶8} In the first assignment of error, Cooper alleges that the trial court erred

by not allowing him to amend his complaint.

      A party may amend its pleading once as a matter of course
      within twenty-eight days after serving it or, if the pleading is one
      to which a responsive pleading is required within twenty-eight
      days after service of a responsive pleading or twenty-eight days
      after service of a motion under Civ.R. 12(B), (E), or (F),
      whichever is earlier. In all other cases, a party may amend its
      pleading only with the opposing party’s written consent or the
      court’s leave. The court shall freely give leave when justice so
      requires. * * *

Civ.R. 15(A). The decision to grant or deny a motion for leave to amend a

pleading is within the sound discretion of the trial court. Turner v. Cent. Local

School Dist., 85 Ohio St.3d 95, 99, 706 N.E.2d 1261 (1999). “While the rule

allows for liberal amendment, motions to amend pleadings pursuant to Civ.R.

15(A) should be refused if there is a showing of bad faith, undue delay, or undue

prejudice to the opposing party.” Id.

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Case No. 16-14-04 and 16-14-08


         {¶9} The record in this case indicates that the complaint was filed on

December 16, 2013. Doc. 1. The answers were filed on January 3, 2014 (CSB

and Martin) and January 10, 2014 (Bartholomew). Cooper filed his motion to

amend the complaint on February 27, 2014, which is outside of the twenty-eight

days allowed by the rule. The basis for the request was that it was “an important

class action case” and had only been pending for two and a half months. Doc. 15.

All of the defendants objected to the motion to amend the complaint. Doc. 19, 20.

Thus, the only way the complaint could be amended was through leave of the

court.

         {¶10} Cooper argues that the trial court erred by not granting leave to

amend because the civil rules requires leave be freely given when justice so

requires. Cooper claims that the amendment should have been permitted because

1) he had overlooked a third-party beneficiary claim; 2) he wanted to clarify

factual allegations more precisely; and 3) he wanted to more clearly set forth

elements of a class action claim. This court notes as to the third claim that

although Cooper requested that this case be certified as a class action suit, no

certification occurred. As to the wishing to further clarify the factual claims,

Cooper had the ability to do so in response to summary judgment, thus it was not

necessary for the purposes of the complaint. This leaves one claim – the third-

party beneficiary claim that was overlooked.



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Case No. 16-14-04 and 16-14-08


        {¶11} Cooper claims that he was an intended beneficiary of the contract

between CSB and Martin to sue him on cognovit note. This court has no idea on

what legal premise a defendant in a case would think he is an intended beneficiary

of a contract between the plaintiffs and their attorney who are filing suit against

him. Cooper has not cited to any authority for this premise and we do not find any

through our own review of statutes and case law in Ohio. As to Bartholomew,

CSB did hire him to confess judgment pursuant to the cognovit note on Cooper’s

behalf.2 However, the argument raised by Cooper as it relates to Bartholomew in

the motion to amend his complaint is the same as that raised in the second claim

for relief in the original complaint, it is just titled differently. Cooper claimed in

the original complaint that Bartholomew breached his duty as an attorney to take

reasonable steps. It was not necessary to amend the complaint to get that claim

before the trial court. Cooper has not shown how he suffered any prejudice from

the trial court’s decision and this court does not see any upon review of the

record.3 Therefore, the trial court did not abuse its discretion in denying the

motion to amend the complaint. The first assignment of error is overruled.

        {¶12} The second and third assignments of error both claim that the trial

court erred in granting summary judgment to Appellees.



2
  Bartholomew was not hired to represent Cooper’s interests as Cooper’s attorney, but rather to review the
note and the surrounding facts to determine if judgment should be confessed as set forth in R.C. 2323.19.
3
  Although the cognovit note and warrant were filed in Wyandot County and judgment was granted, that
judgment was quickly vacated when the improper venue was discovered. Additionally, there is no dispute
that Cooper had not been paying the money owed on the debt. See Cooper v. Westerville, supra.

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Case No. 16-14-04 and 16-14-08


      An appellate court reviews a trial court’s summary judgment
      decision de novo, independently and without deference to the
      trial court's decision. Ohio Govt. Risk Mgt. Plan v. Harrison, 115
      Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, at ¶ 5, citing
      Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d
      712, at ¶ 8. Summary judgment is appropriate only “when the
      requirements of Civ.R. 56(C) are met.” Adkins v. Chief
      Supermarket, 3d Dist. No. 11-06-07, 2007-Ohio-772, at ¶ 7. The
      party moving for summary judgment must establish: (1) that
      there are no genuine issues of material fact; (2) that the moving
      party is entitled to judgment as a matter of law; and (3) that
      reasonable minds can come to but one conclusion and that
      conclusion is adverse to the nonmoving party, said party being
      entitled to have the evidence construed most strongly in his
      favor. Id., citing Civ.R. 56(C); Horton v. Harwick Chem. Corp.
      (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, at paragraph three
      of the syllabus. In ruling on a motion for summary judgment, a
      court may not “weigh evidence or choose among reasonable
      inferences * * *.” Id., at ¶ 8, 653 N.E.2d 1196, citing Jacobs v.
      Racevskis (1995), 105 Ohio App.3d 1, 7, 663 N.E.2d 653. Rather,
      the court must consider the above standard while construing all
      evidence in favor of the non-movant. Jacobs, at 7, 663 N.E.2d
      653.

      The party moving for summary judgment must identify the
      basis of the motion to allow the non-movant a “meaningful
      opportunity to respond.” Mitseff v. Wheeler (1988), 38 Ohio
      St.3d 112, 116, 526 N.E.2d 798. In its motion, the moving party
      “must state specifically which areas of the opponent’s claim raise
      no genuine issue of material fact and such assertion may be
      supported by affidavits or otherwise as allowed by Civ.R.
      56(C).” Id. at 115, 526 N.E.2d 798, citing Harless v. Willis Day
      Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46,
      citing Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517, 519-520,
      196 N.E.2d 781; Dresher v. Burt (1996), 75 Ohio St.3d 280, 293,
      662 N.E.2d 264. If the moving party fails to meet its burden,
      summary judgment is inappropriate; however, if the moving
      party meets its initial burden, the non-moving party has a
      “reciprocal burden outlined in Civ.R. 56(E) to set forth specific
      facts showing that there is a genuine issue for trial * * *.”
      Dresher, at 294, 662 N.E.2d 264.

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Case No. 16-14-04 and 16-14-08



Lillie v. Meachem, 3d Dist. Allen No. 1-09-09, 2009-Ohio-4934, ¶21-22.

       {¶13} Cooper argues in the second assignment of error that there was a

material issue of fact which precluded granting summary judgment to CSB.

However, in support of that argument, Cooper merely claims that “this case goes

to the integrity of the civil legal system”. Appt.’s Brief, 11. At no time does

Cooper provide this court with any guidance as to what he believes the issues of

material fact to be. This court notes that the issue of whether Cooper owed money

to CSB on the note was raised in the Delaware County case.

       (A) Compulsory counterclaims. A pleading shall state as a
       counterclaim any claim which at the time of serving the
       pleading, the pleader has against any opposing party, if it arises
       out of the transaction or occurrence that is the subject matter of
       the opposing party’s claim and does not require for its
       adjudication the presence of third parties of who the court
       cannot acquire jurisdiction.

Civ.R. 13. The requirement that a compulsory counterclaim be filed also applies

to a plaintiff if a defendant raises a counterclaim. Rettig Enterprises, Inc. v.

Koehler, 68 Ohio St.3d 274, 278, 626 N.E.2d 99 (1994). “Civ.R. 13(A) requires

all existing claims between opposing parties that arise out of the same transaction

or occurrence to be litigated in a single lawsuit, regardless of which party initiates

the lawsuit.”    Id.   Pursuant to the “logical relation” test, “[a] compulsory

counterclaim is one which ‘is logically related to the opposing party's claim where

separate trials on each of their respective claims would involve a substantial


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Case No. 16-14-04 and 16-14-08


duplication of effort and time by the parties and the courts.’” Id. (quoting Great

Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631, 634 (C.A.3, 1961)).

There is a two-prong test for determining whether a counterclaim is compulsory or

permissive. “The two-pronged test for applying Civ.R. 13(A) is: (1) does the

claim exist at the time of serving the pleading * * *; and (2) does the claim arise

out of the transaction or occurrence that is the subject matter of the opposing

claim.” Geauga Truck & Implement Co. v. Juskiewicz, 9 Ohio St.3d 12, 14, 457

N.E.2d 827 (1984).

      {¶14} Here, the claims raised by Cooper against CSB did not exist upon the

filing of the initial complaint in Delaware County on June 23, 2011. However,

those causes of action did exist as of July 11, 2011, when the trial court granted

the motion for judgment on the cognovit note. On July 18, 2011, Cooper filed an

amended complaint in the Delaware County case adding Bartholomew as a

defendant and stating a cause of action against CSB for obtaining a judgment in

the wrong court. Doc. 28 at 3. CSB filed its counterclaim against Cooper for

judgment on the cognovit note in November of 2011. Id. at 5. In response to

CSB’s counterclaim, Cooper filed an answer and a counterclaim of his own

asserting additional causes of action. Id. On March 14, 2012, Cooper filed a

second amended complaint in the Delaware County Case. Id. The new complaint

alleged that CSB and Bartholomew had “conspired to obtain a cognovit judgment

against Cooper in the wrong county” and that the behavior was “willful, malicious,

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Case No. 16-14-04 and 16-14-08


oppressive and/or reckless.” Id. at 6. On April 18, 2012, Cooper voluntarily

dismissed his counterclaim and dismissed all claims against all parties in the case

except CSB. Id. Cooper later dismissed all claims against CSB. Id. Based upon

the undisputed evidence before the trial court, the claims against CSB were known

before the second amended complaint was filed, as shown by the fact that Cooper

raised those issues in the amended complaint. Thus, the first prong of the test is

satisfied. The claims arose from the collection of the debt, which was the basis of

the counterclaim filed by CSB in the Delaware County Case. Thus, the second

prong of the test is satisfied. Since both prongs of the test were satisfied, the

claims are compulsory in nature and should have been adjudicated in the Delaware

County Case. The facts show that the claims were brought in the Delaware

County Case, but Cooper voluntarily withdrew them, choosing not to proceed.

Pursuant to the doctrine of res judicata, these claims cannot be brought in this case

when they should have been brought in an earlier case. Rettig Enterprises, supra

and Civ.R. 13(A). Therefore, the trial court did not err in granting summary

judgment to CSB. The second assignment of error is overruled.

       {¶15} Pursuant to the third assignment of error, Cooper alleges that the trial

court erred in granting summary judgment to Martin and Bartholomew on the

basis of attorney immunity. “An attorney is immune from liability to third persons

arising from his performance as an attorney in good faith on behalf of, and with

the knowledge of his client, unless such third person is in privity with the client or

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Case No. 16-14-04 and 16-14-08


the attorney acts maliciously.” Scholler v. Scholler, 10 Ohio St.3d 98, 462 N.E.2d

158 (1984), paragraph one of the syllabus

       [W]hen an attorney confesses judgment against a debtor in favor
       of a creditor under a cognovit provision of a contract, that
       attorney represents only the creditor. An attorney confessing
       judgment against a debtor does not represent that debtor—the
       attorney is only acting as authorized under both contract and
       the statute.

DiBenedetto v. Miller, 180 Ohio App.3d 69, 2008-Ohio-6506, ¶ 15, 904 N.E.2d

554 (1st Dist.).

       {¶16} Initially, this court notes that Cooper failed to file a timely

memorandum in opposition to Bartholomew’s motion for summary judgment.

Bartholomew stated in his affidavit attached to his motion for summary judgment

that he had never represented Cooper. Doc. 8, Ex. A at 2. Bartholomew also

alleged that he had no personal knowledge that Wyandot County was an

inappropriate venue for the case. Id. According to the affidavit, Bartholomew

“did not conspire with anyone to deprive [Cooper] of any rights nor did

[Bartholomew] in any way abuse process or sign the cognovit judgment with an

ulterior motive or have any malice to [Cooper], whom [Bartholomew] did not

know.”     Id.     Bartholomew indicated that he only signed the confession of

judgment “because it appeared to be correct” based upon the information he had

reviewed. Id.




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Case No. 16-14-04 and 16-14-08


       {¶17} As discussed above, there is no doubt that Martin did not represent

Cooper as he was the attorney for CSB. Martin filed his motion for summary

judgment on March 21, 2014. Doc. 21. Attached to the motion was Martin’s

affidavit in which he stated that had “never given legal representation to [Cooper]

and [had] never been his lawyer.” Id., Ex. A at 1. Martin stated that he “acted in

good faith with no fraudulent intent whatsoever, I acted simply as a lawyer

performing duties for my client, [CSB].” Id. at 2.

       {¶18} No evidence was presented by Cooper that Bartholomew or Martin

represented him in any capacity or that Cooper acted with malice. Cooper merely

alleges in his affidavit that he believes Bartholomew and Martin acted with malice

merely because the case was filed in the wrong county. “[I]t is well settled that a

party may not simply use a self-serving affidavit to establish a genuine issue of

material fact if such an affidavit contains nothing more than bare contradictions of

other competent evidence and a conclusory statement of law.” Wells Fargo Bank,

N.A. v. Sessley, 188 Ohio App.3d 213, 2010-Ohio-2902, ¶ 30, 935 N.E.2d 70 (10th

Dist.). While the evidence is undisputed that the case was originally wrongfully

filed in Wyandot County, there is no evidence to show that this was done with a

malicious intent, rather than a mere mistake. The only evidence before the trial

court was that the case was mistakenly filed in the wrong county, when the




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Case No. 16-14-04 and 16-14-08


mistake was discovered it was corrected without dispute,4 and Bartholomew

claims it was a mistake.            Since neither Bartholomew nor Martin represented

Cooper, there was no privity. The undisputed evidence is that Bartholomew acted

in good faith when he signed the confession of judgment and did not act

maliciously towards Cooper. Likewise, the undisputed evidence is that Martin

acted in good faith as well. Thus, Bartholomew and Martin were entitled to

immunity from liability regarding claims Cooper might have. The trial court did

not err in granting Bartholomew’s and Martin’s motions for summary judgment.

The third assignment of error is overruled.

        {¶19} Finally, Cooper alleges that the trial court erred in imposing

sanctions. CSB, Martin and Bartholomew had filed for sanctions pursuant to

Civ.R. 11 and R.C. 2323.51. Civil Rule 11 states in pertinent part as follows:

        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. * * * 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.

Civ.R. 11. R.C. 2323.51 provides for sanctions for frivolous conduct in civil

actions.

4
 No one alleges that CSB, Martin, or Bartholomew opposed the motion for reconsideration or the dismissal
of the claim once the error was discovered. Instead, the record shows that CSB merely filed for judgment
as a counterclaim in the Delaware County Case.

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Case No. 16-14-04 and 16-14-08


       (2) “Frivolous conduct” means either of the following:

       (a) Conduct of an inmate or other party to a civil action * * * or
       of the inmate’s or other party’s counsel of record that satisfies
       any of 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.

       (iii) The conduct consists of allegations or other factual
       contentions that have no evidentiary support or, if specifically so
       identified, are not likely to have evidentiary support after a
       reasonable opportunity for further investigation or discovery.

       (iv) The conduct consists of denials or factual contentions that
       are not warranted by the evidence or, if specifically so identified,
       are not reasonably based on information or belief.

R.C. 2323.51(A)(2). “Whether conduct is frivolous is a question of law that an

appellate court independently reviews.” Burchett v. Larkin, 192 Ohio App.3d 418,

2011-Ohio-684, ¶ 22, 949 N.E.2d 516 (4th Dist.).          However, once frivolous

conduct is found, the decision to award attorney fees is reviewed pursuant to an

abuse of discretion standard. Id. Courts must be careful in finding frivolous

conduct in order to avoid deterring legitimate claims. Id. at ¶ 20.

       [An action] is not frivolous merely because a claim is not well-
       grounded in fact. Richmond Glass & Aluminum Corp. v. Wynn
       (Sept. 5, 1991), Columbiana App. No. 90–C–46, [1991 WL
       172902, at *2]. Furthermore, the statute was not intended to

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Case No. 16-14-04 and 16-14-08


       punish mere misjudgment or tactical error. Turowski v. Johnson
       (1991), 70 Ohio App.3d 118, 123 [590 N.E.2d 434], quoting
       Stephens v. Crestview Cadillac (1989), 62 [64] Ohio App.3d 129,
       134 [580 N.E.2d 842]. Instead, the statute was designed to chill
       egregious, overzealous, unjustifiable, and frivolous action.
       Turowski v. Johnson (1990), 68 Ohio App.3d 704, 706 [589
       N.E.2d 462].

       Whether a claim is warranted under existing law is an objective
       consideration. Lewis v. Celina Fin. Corp. (1995), 101 Ohio
       App.3d 464, 473 [655 N.E.2d 1333], citing Ceol v. Zion Indust.
       Inc. (1992), 81 Ohio App.3d 286, 291 [610 N.E.2d 1076]. The test,
       we find, is whether no reasonable lawyer would have brought
       the action in light of the existing law. In other words, a claim is
       frivolous if it is absolutely clear under the existing law that no
       reasonable lawyer could argue the claim.

Hickman v. Murray, 2d Dist. Montgomery No. CA 15030, 1996 WL 125916 (Mar.

22, 1996). When a reasonable inquiry by counsel would reveal the inadequacy of

a claim, a finding that counsel has engaged in frivolous conduct is justified.

Burchett, supra at ¶21.

       {¶20} On appeal, two issues with the award of attorney fees as sanctions

are alleged.   First it is argued that the trial court did not comply with the

requirements of R.C. 2323.51(A) because it placed the burden on Cooper and

Moses to show that the claims were not frivolous rather than requiring the moving

parties to show that the claims were frivolous. Appellant claims that the Appellees

put forth no evidence as to what specific conduct was frivolous. A review of the

record indicates that Moses was the first witness to testify about the case and then

Appellees presented the testimony of witnesses regarding the fees. Although there


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Case No. 16-14-04 and 16-14-08


may not be voluminous testimony to consider, there is evidence in the record that

indicates that Cooper and Moses proceeded with the case without first determining

that there was a basis for bringing the claim. The testimony was that Moses

attempted to determine if CSB had improperly obtained judgment on cognovit

notes against other people, however no response was received from the potential

plaintiffs. Despite this lack of confirmation, Moses and Cooper attempted to file a

class action suit without any evidence that more than one plaintiff was affected.

Throughout his testimony, Moses presented no evidence that he had performed a

reasonable inquiry into the claims listed in the complaint. Moses also raised

claims against CSB that he knew or should have known were barred by the

doctrine of res judicata. As to the claims against Martin and Bartholomew, Moses

had no other evidence of malice than the fact that the original case was filed in the

wrong court. Although malice can be inferred from the facts, one mistake is

hardly evidence of malice. Given the miniscule amount of evidence that indicated

any malice or intentional wrongdoing, the claims raised in the complaint were not

supported by the law or a good faith argument for an extension of the law. Thus,

the trial court did not err in finding that Cooper and Moses had engaged in

frivolous conduct in the filing of the lawsuit.

       {¶21} Since there was frivolous conduct, the next issue is whether the

Appellees suffered adverse effects. Testimony was presented at the hearing that

the Appellees incurred attorney fees as a result of the filing of the frivolous

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Case No. 16-14-04 and 16-14-08


complaint. Itemized bills were presented to the trial court showing the amounts of

the bills. No one disputed that these bills were due and owing.

       {¶22} The last issue then is the reasonableness of the attorney fees. CSB

was granted judgment in the amount of $4,116 in attorney fees for past work, plus

an additional $1,080 for services including the sanctions hearing, and $605 for an

expert witness to testify to the reasonableness of the fees for a total financial

sanction of $5,801.00.     This amount is supported by competent and credible

evidence through the testimony and itemized statements. Thus, the trial court did

not err in awarding this sanction.

       {¶23} Martin was granted judgment in the amount $4,080 in attorney fees

for past work, plus an additional $1080 for services including the sanctions

hearing, and $605 for an expert witness to testify to the reasonableness of the fees

for a total financial sanction of $5,765.00. This amount is supported by competent

and credible evidence through the testimony and itemized statements. The trial

court did not err in awarding this sanction.

       {¶24} Finally, the trial court awarded attorney fees to Bartholomew in the

total amount of $32,138.00.          This number came from the itemized billing

statements and testimony that the amount was reasonable and necessary. It was

composed of $28,143 from the billing statements as well as $3,345 in additional

attorney services including the sanctions hearing and $605 for the expert

testimony. However, a review of the record indicates that this original number is

                                          -19-
Case No. 16-14-04 and 16-14-08


not supported by competent and credible evidence.                        This court notes that

Bartholomew’s attorneys were hired by his insurance company to represent him.

The billing statements repeatedly billed for review of other cases as well as other

items that may or may not have been related to this case. For example, on January

2, 2014, a bill is set forth regarding review of the Richardson case and

correspondence regarding that case. Multiple billings occurred for communication

regarding the Pour House case (February 2014), the Kightlinger case (May-June

2014), the Gridiron Case (July 2014)5, the Baldwin case (July 2014), the Zion case

(August 2014), the Clark Wood case (August 2014), the McKee deposition (July

2014), multiple reviews of the local rules, and multiple communications with the

insurance company without any identification as to what the communication

referenced. Sanctions to pay attorney fees should not be required for work not

directly related to this case. Since the billing statements contained items which

were not related to this case and were thus not appropriately awarded as sanctions

in this case, the trial court erred in ordering the payment of attorney fees for that

work.     Thus, the award of attorney fees to Bartholomew in the amount of

$32,138.00 was not supported by the evidence. The fourth assignment of error is

sustained in part and overruled in part.



5
  Testimony was presented that Bartholomew was not a party to this case, but it was a case brought by
Moses against CSB after summary judgment was granted and Bartholomew’s attorneys were reviewing it
just in case it involved Bartholomew. Tr. 117-18. Several of these case reviews occurred after summary
judgment was granted and the matter was resolved.

                                                -20-
Case No. 16-14-04 and 16-14-08


       {¶25} Having found no error prejudicial to Appellant, the judgment of the

Court of Common Pleas of Wyandot County in case number 16-14-04 is affirmed.

Having found error prejudicial to Appellant, the judgment of the Court of

Common Pleas of Wyandot County in case number 16-14-08 is affirmed in part

and reversed in part. The matter is remanded for further proceedings in accord

with this opinion.

                                               Judgment in 16-14-04 Affirmed
                                         Judgment in 16-14-08 Affirmed in Part
                                                              Reversed in Part


ROGERS, P.J. and PRESTON, J., concur.

/hlo




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