[Cite as Tate v. Tate, 2018-Ohio-1243.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


ROBYN M. TATE                                :       JUDGES:
                                             :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                   :       Hon. W. Scott Gwin, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
BRUCE E. TATE                                :
                                             :
        Defendant                            :       Case No. 17CA001
                                             :
and                                          :
                                             :
TATE FARMS COMPANY, LTD AND                  :
TATE FARMS, A PARTNERSHIP                    :
                                             :
        Defendants-Appellants                :       OPINION


CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Domestic Relations Division,
                                                     Case No. 15DR019

JUDGMENT:                                            Affirmed


DATE OF JUDGMENT:                                    March 29, 2018


APPEARANCES:

For Plaintiff-Appellee                               For Defendants-Appellants

LON R. VINION                                        GRANT A. MASON
3431 Commerce Parkway                                The Lincoln Building
Suite C                                              88 South Monroe Street
Wooster, OH 44691                                    Millersburg, OH 44654

R.J. Helmuth
343 South Crownhill Road
P.O. Box 149
Orrville, OH 44667
Holmes County, Case No. 17CA001                                                      2

Wise, Earle, J.

       {¶ 1} Defendants-Appellants, Tate Farms Company, Ltd. and Tate Farms, a

Partnership, appeal the February 13, 2017 judgment entry denying their motion for

sanctions and the March 30, 2017 decree of divorce of the Court of Common Pleas of

Holmes County, Ohio, Domestic Relations Division. Plaintiff-Appellee is Robyn M. Tate.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On February 14, 1998, defendant, Bruce Tate, and appellee were married.

No children were born as issue of the marriage. On March 10, 2015, appellee filed a

complaint for divorce against defendant, and also named appellants, two entities

defendant had interests in.      The other individuals involved with the entities were

defendant's father, mother, and brother. Appellants filed an amended answer on May 1,

2015, asserting lack of jurisdiction over the person and the subject matter.

       {¶ 3} On June 23, 2015, appellants filed a motion to dismiss challenging the

jurisdiction issue. The trial court took the matter under advisement.

       {¶ 4} Hearings were held on September 19, 21, 22, 23, 29, and October 10,

2016. At the conclusion of the September 29, 2016 hearing, appellants moved for a

directed verdict. By judgment entry filed October 11, 2016, the trial court granted the

motion and dismissed appellants from the case. Appellants were aware of the trial

court's ruling prior to the October 10, 2016 hearing.

       {¶ 5} On October 28, 2016, appellants filed a motion for sanctions followed by

an affidavit detailing the attorney fees incurred.
Holmes County, Case No. 17CA001                                                          3


       {¶ 6} On February 13, 2017, the trial court issued a statement of the case,

findings of fact, and conclusions of law. In a separate judgment entry filed same date,

the trial court denied appellant's motion for sanctions. Appellants filed an appeal.

       {¶ 7} On March 30, 2017, the trial court issued a decree of divorce, attaching

referenced Exhibits A and B, but not C.1

       {¶ 8} On April 4, 2017, defendant filed a notice of appeal.

       {¶ 9} On April 7, 2017, appellants filed an amended notice of appeal to

incorporate the divorce decree.

       {¶ 10} On April 25, 2017, defendant filed with the trial court a motion for a nunc

pro tunc order to address the missing Exhibit C. The trial court did not rule on this

motion.

       {¶ 11} On May 15, 2017, defendant filed with this court a motion to correct the

record under App.R. 9(E), seeking a limited remand to address the missing Exhibit C.

By judgment entry filed June 8, 2017, this court granted the motion and remanded the

matter to the trial court to address the missing exhibit. On June 26, 2017, the trial court

filed a nunc pro tunc statement of the case, findings of fact, conclusions of law, and

decision, attaching the missing Exhibit C. The trial court made substantive changes to

its previous decision which is the subject of separate appeals (App. Nos. 17CA13 and

17CA14).

       {¶ 12} This matter is now before this court for consideration of the trial court's

judgment entry filed February 13, 2017, and the divorce decree filed March 30, 2017

with the added Exhibit C. The pertinent parts of the decision and the relevant facts will


1We note the decree did not specifically reference Exhibit C, although it did adopt and
incorporate the February 13, 2017 filing which did.
Holmes County, Case No. 17CA001                                                            4


be addressed under each of the corresponding assignments of error. Assignments of

error are as follows:

                                              I

       {¶ 13} "THE TRIAL COURT ERRED AND DEPRIVED TATE FARMS OF ITS

RIGHT TO APPEAL THE TRIAL COURT'S DENIAL OF ITS MOTION FOR

SANCTIONS PURSUANT TO R.C. § 2323.51 BY VIRTUE OF THE 'HOLD

HARMLESS' LANGUAGE INCORPORATED IN THE DECREE OF DIVORCE."

                                             II

       {¶ 14} "THE TRIAL COURT ERRED IN DENYING TATE FARMS' MOTION FOR

SANCTIONS UNDER R.C. § 2323.51 WITHOUT A HEARING, WHERE APPELLEE

ERRONEOUSLY MADE TATE FARMS A PARTY TO THE DIVORCE LITIGATION

UNDER CIV.R. 75(B)(1) AND ASSERTED AND PURSUED CLAIMS AGAINST TATE

FARMS THAT WERE NOT WARRANTED UNDER EXISTING LAW."

                                             III

       {¶ 15} "THE TRIAL COURT ERRED BY IMPOSING A JUDICIAL LIEN AGAINST

REAL PROPERTY HELD SOLELY BY TATE FARMS."

                                              I

       {¶ 16} In their first assignment of error, appellants claim the trial court erred and

deprived them of their right to appeal the trial court's denial of their motion for sanctions

by virtue of the hold harmless provision in the decree of divorce. We disagree.

       {¶ 17} We do not find anything in the trial court's hold harmless provisions that

effectively prevents appellants from filing an appeal in this matter. Appellants have filed

an appeal and this court will address the merits.
Holmes County, Case No. 17CA001                                                           5


       {¶ 18} Assignment of Error I is denied.

                                             II

       {¶ 19} In their second assignment of error, appellants claim the trial court erred in

denying their motion for sanctions without a hearing, where appellee made them parties

to the divorce action and asserted and pursued claims against them that were not

warranted. We disagree.

       {¶ 20} R.C. 2323.51 governs sanction awards.         Subsection (B)(1) states the

following:



              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.



       {¶ 21} "Frivolous conduct" is defined in subsection (A)(2) as:
Holmes County, Case No. 17CA001                                                       6


             (a) Conduct of an inmate or other party to a civil action, of an

      inmate who has filed an appeal of the type described in division (A)(1)(b)

      of this section, 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 a lack of information or belief.



      {¶ 22} As explained by the Supreme Court of Ohio in State ex rel. DiFranco v.

South Euclid, 144 Ohio St.3d 571, 2015-Ohio-4915, 45 N.E.3d 987, ¶ 15:
Holmes County, Case No. 17CA001                                                           7


             Frivolous conduct, as contemplated by R.C. 2323.51(A)(2)(a), is

      judged under an objective, rather than a subjective standard, Striker [v.

      Cline, 130 Ohio St.3d 214, 2011-Ohio-5350, 957 N.E.2d 19], ¶ 21, and

      must involve egregious conduct. Frivolous conduct is not proved merely

      by winning a legal battle or by proving that a party's factual assertions

      were incorrect. Ohio Power Co. v. Ogle, 4th Dist. Hocking No. 12CA14,

      2013-Ohio-1745, 2013 WL 1803895, ¶ 29-30 (" 'A party is not frivolous

      merely because a claim is not well-grounded in fact. * * * [R.C. 2323.51]

      was designed to chill egregious, overzealous, unjustifiable, and frivolous

      action. * * * [A] claim is frivolous if it is absolutely clear under the existing

      law that no reasonable lawyer could argue the claim' "), quoting Hickman

      v. Murray, 2d Dist. Montgomery No. CA1–5030, 1996 WL 125916, *5

      (Mar. 22, 1996).



      {¶ 23} In their motion for sanctions, appellants argued appellee improperly

named them as party defendants, her claims against them had no basis under Ohio law,

and she forced them to incur substantial attorney fees in defending the action. By

judgment entry filed February 13, 2017, the trial court denied the motion without

comment and without hearing.

      {¶ 24} Appellee joined appellants in her divorce complaint pursuant to Civ.R.

75(B) which governs joinder of parties in divorce actions. Subsection (1) states: "A

person or corporation having possession of, control of, or claiming an interest in

property, whether real, personal, or mixed, out of which a party seeks a division of
Holmes County, Case No. 17CA001                                                         8


marital property, a distributive award, or an award of spousal support or other support,

may be made a party defendant[.]"

       {¶ 25} The 2001 Staff Note to the statute, as discussed by appellants in their

brief at 12, states the following:



              Civ. R. 75(B) provides that Civ. R. 14 (third-party practice), Civ. R.

       19 (joinder of parties needed for just adjudication), Civ. R. 19.1

       (compulsory joinder), and Civ. R. 24 (intervention) are generally

       inapplicable in divorce, annulment, or legal separation actions. Division

       (1) of Rule 75(B), however, permits a corporation or person to be made a

       party defendant to such an action if that corporation or person has

       possession or control of or claims an interest in property out of which

       another seeks an award. Civ. R. 75(B)(1) thus permits the court to protect

       both the person seeking an award and the corporation or person who has

       possession or control of or claims an interest in property. See Huener v.

       Huener, 110 Ohio App. 3d 322, 327, 674 N.E. 2d 389, 393 (1996) (trial

       court abused its discretion by attempting to divest parents of party of legal

       title to property without joining them as parties; purpose of Civ. R. 75(B)(1)

       joinder "is to allow individuals to join whose interests need to be

       protected").

              Division (B)(1) was amended effective July 1, 2001 to track more

       precisely the language of R.C. 3105.171, which provides for division of

       marital property and, in appropriate circumstances, a distributive award,
Holmes County, Case No. 17CA001                                                          9


      and R.C. 3105.18, which provides for spousal support. The amendment is

      intended to make clear that the joinder of a corporation or person is proper

      whether a division of marital property, a distributive award, or an award of

      spousal support is the underlying issue. The reference to "other support"

      is retained in order to avoid foreclosing the use of Civ. R. 75(B)(1) when,

      e.g., child support is the underlying issue.



      {¶ 26} Defendant owned 25% of the partnership and 24.5% of the company.

Clearly defendant had an interest in the two entities which had possession of, control of,

or claimed an interest in the property out of which appellee sought a division of marital

property and an award of spousal support. Business entities other than "corporations"

can be joined under this section. Gest v. Gest, 9th Dist. Lorain No. 96CA006580, 1998

WL 208872 (Apr. 29, 1998) (joinder of dairy farm partnership).

      {¶ 27} In this case, the trial court was charged with determining the extent of

defendant's ownership in the two entities, the value of his ownership interests, and

whether his interests constituted marital property subject to division between the parties

in their divorce action.   The trial court heard from various experts regarding the

interrelationship between the parties, their marriage, and appellants. The interests of all

the parties were "intertwined and comingled." Appellee's Brief at 15. It was necessary

for the trial court to determine through all the testimony and exhibits presented just what

those interests were. As noted by the trial court in its November 2, 2015 judgment entry

addressing appellants' motion to dismiss them as parties, it was the trial court's

"responsibility in presiding over any divorce case to be certain that the entire financial
Holmes County, Case No. 17CA001                                                        10


picture is transparent prior to making final equitable orders for both parties." The real

and personal property used in appellants' operations and defendant's interests in and

income from the entities were all at issue in determining the allocation of marital

property in the divorce and any possible support obligation.

       {¶ 28} After the September 29, 2016 hearing, the trial court granted appellants'

motion for directed verdict. See Judgment Entry filed October 11, 2016. The trial court

relieved appellants as legal parties, but permitted them to remain as "interested" parties

if they so desired. Although appellants' counsel was aware of the trial court's ruling, he

was present during the final hearing held on October 10, 2016, to "simply protect the

interest of Mr. [Hal] Tate." T. at 1086, 1092-1093. In fact, appellants' counsel objected

when appellee's counsel asked Mr. Hal Tate about not filing any gift tax returns. T. at

1158-1159.    In the decree of divorce, the trial court noted appellants "had the full

opportunity and in fact did present evidence with respect to the legal and equitable

issues involved in this case." By being joined in the action, appellants were provided

due process, and were given the opportunity to present evidence, cross-examine

witnesses, and protect their interests in the case.

       {¶ 29} Using an objective standard, we do not find egregious conduct and find it

is not "absolutely clear under the existing law that no reasonable lawyer could argue the

claim." DiFranco, supra. We do not find any evidence of frivolous conduct as set forth

in R.C. 2323.51(A)(2) under either a de novo standard of review or an abuse of

discretion standard or review. Daniels v. Daniels, 5th Dist. Licking No. 14-CA-74, 2015-

Ohio-1674, ¶ 26.
Holmes County, Case No. 17CA001                                                          11


       {¶ 30} Appellants make much ado about appellee being a judgment creditor and

needing to obtain a charging order. This is a divorce case involving a division of assets

and liabilities. Appellee is not a judgment creditor in this case, she is a party receiving

her own portion of assets accumulated with her spouse over a number of years. In their

reply brief at 13, appellants cite to several cases to support their argument that "multiple

domestic relations cases have referred to the spouse who is awarded money as a

'judgment creditor'."   The "awards" in these cases relate to after-the-fact child and

spousal support arrearages and attorney fees, not awards pursuant to a division of

assets.

       {¶ 31} As noted by appellants in their motion for sanctions, citing Sheridan v.

Harbison, 101 Ohio App.3d 206, 655 N.E.2d 256 (1995), an evidentiary hearing is

required "only on those motions which demonstrate arguable merit, and that a motion

for sanctions may be denied without hearing when the trial court determines that there

is no basis for imposition of sanctions."

       {¶ 32} As explained by this court in Miller v. Evans, 5th Dist. Stark No.

2015CA00042, 2015-Ohio-4571, ¶ 18:



              It has been uniformly held that a hearing on a motion for sanctions

       under R.C. 2323.51(B)(2) is only required when the trial court grants the

       motion. Galena v. Delaware Cty. Regional Planning Comm., 5th Dist.

       Delaware No.2011-CAE-07-0068, 2012-Ohio-182, ¶ 28 (Delaney, J.

       dissenting), citing Shields v. City of Englewood, 172 Ohio App.3d 620,

       2007-Ohio-3165, 876 N.E.2d 972 (2nd Dist.); McKinney v. Aultman Hosp.,
Holmes County, Case No. 17CA001                                                            12


       5th Dist. Stark No. CA-8603, unreported, 1992 WL 100451 (Apr. 27,

       1992); McPhillips v. United States Tennis Assoc. Midwest, 11th Dist. Lake

       No.2006-L-235, 2007-Ohio-3595; Avon Poured Wall, Inc. v. Boarman, 9th

       Dist. Lorain No. 04CA008448, 2004-Ohio-4588; Coretext Ltd. v. Pride

       Media Ltd., 10th Dist. Franklin No. 02AP-1284, 2003-Ohio-5760. A trial

       court must schedule a hearing only on those motions which demonstrate

       arguable merit; if the trial court determines there is no basis for the

       imposition of sanctions, it may deny the motion without hearing. Id. at ¶

       12. Such a determination is subject to the sound discretion of the trial

       court. Id. at ¶ 15.



       {¶ 33} In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶ 34} The trial court had the benefit of presiding over the entire case and was

familiar with the issues involved. Appellants' motion did not demonstrate arguable merit

requiring the trial court to schedule a hearing.

       {¶ 35} Upon review, we find the trial court did not abuse its discretion in denying

appellants' motion for sanctions without a hearing.

                                             III

       {¶ 36} In their third assignment of error, appellants claim the trial court erred in

imposing a judicial lien against real property held solely by the entities. We disagree.
Holmes County, Case No. 17CA001                                                          13


       {¶ 37} Specifically, appellants are challenging the judicial lien the trial court

imposed on defendant's interest in a home located on SR 754. Appellants argue they

own the entire property.

       {¶ 38} Defendant admitted to building a separate home for himself on the SR 754

property. T. at 43. The home sits on land owned by appellant company. T. at 96.

Defendant signed a promissory note to pay back appellants for the cost they incurred in

building the new home. T. at 114; Plaintiff's Exhibit K1. Defendant made two payments

totaling $55,000 toward the obligation. T. at 115; Plaintiff's Exhibit K2.       Defendant

agreed the home was not in any way gifted to him and he was making payments on it.

T. at 118. Mr. Hal Tate testified the land the home sits on is still titled in appellant

company's name.      T. at 1143.    He indicated there were no current agreements to

transfer the land to defendant, but appellants did have a demand note from defendant

for the home. Id.

       {¶ 39} The trial court found appellant built a home on land owned by appellants,

and diverted $55,000 from his retirement account to pay appellants for monies

borrowed to build the home. Finding of Fact Nos. 49 and 50. The trial court awarded

defendant the real estate on SR 754, except for $55,000 which was deemed marital

property. Conclusion of Law No. 16. The trial court placed a judicial lien on defendant's

separate property, including his interest in the SR 754 home, in order to prevent

defendant from interfering with appellee or the trial court's ability to enforce its orders.

Conclusion of Law No. 36. In the divorce decree, the trial court awarded defendant all

of his interest in the home constructed on the SR 754 property, and incorporated the
Holmes County, Case No. 17CA001                                                           14


judicial lien in its divorce decree "until such time as the obligations contained herein with

respect to the property and debt distributions are satisfied."

       {¶ 40} We find the trial court did not place a lien on all of the property, just

defendant's interest in the home located on the property.

       {¶ 41} Upon review, we find the trial court did not err in imposing a judicial lien on

the subject home in order to enforce its orders.

       {¶ 42} Assignment of Error III is denied.

       {¶ 43} The judgment of the Court of Common Pleas of Holmes County, Ohio

Domestic Relations Division is hereby affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Gwin, J. concur.



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