[Cite as Miller v. Miller, 2012-Ohio-2905.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

PAUL W. MILLER, ET AL.                             JUDGES:
                                                   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellees                        Hon. William B. Hoffman, J.
                                                   Hon. Julie A. Edwards, J.
-vs-
                                                   Case No. 11CA020
ATLEE J. MILLER, ET AL.

        Defendant-Appellants                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Holmes County Court of
                                               Common Pleas Court, Case No. 09CV094


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         June 26, 2012


APPEARANCES:


For Plaintiff-Appellees                        For Defendant-Appellants


GRANT A. MASON                                 CRAIG T. CONLEY
CHRISTINA I. SMITH                             604 Huntington Plaza
Miller, Mast, Mason & Bowling Ltd.             220 Market Avenue South
The Lincoln Bulding                            Canton, Ohio 44702
88 S. Monroe Street
Millersburg, Ohio 44654
Holmes County, Case No. 11CA020                                                         2

Hoffman, J.


      {¶1}    Defendants-appellants Atlee J. Miller, et al. appeal the November 2, 2011

Judgment Entry entered by the Holmes County Court of Common Pleas, which denied

their motion for frivolous conduct sanctions against plaintiffs-appellees Paul W. Miller,

Kimberly Miller, and Miller, Mast, Mason & Bowling, Ltd.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    The instant appeal surrounds a line fence/tree line (hereinafter “disputed

line”) which separates the properties owned by the parties herein.      Appellants Atlee

Miller, Viola Miller, and James Miller are the current owners of the property located on

the north side of the disputed line. Appellants Atlee and Viola Miller acquired their

property in 1966. Appellant James Miller acquired a life interest in the property in 1996.

Appellees Paul and Kimberly Miller own the parcel of property located on the south side

of the disputed line. In January, 2001, Appellees acquired their property which had

been owned by Appellee Paul Miller’s parents, Raymond and Esther Miller, since 1974.

      {¶3}    On June 9, 2009, after a land survey included the disputed line in the legal

description of Appellants’ property, Appellees Paul and Kimberly Miller brought the

instant action asserting ownership of the disputed line under the legal theories of

adverse possession and acquiescence. Appellee Miller, Mast, Mason & Bowling, Ltd.

served as legal counsel for Appellees Miller throughout the trial proceedings.

      {¶4}    The trial court conducted a preliminary injunction hearing on June 29,

2009. Testimony at the hearing revealed the disputed line has been in place since

1952. In an affidavit presented to the court, Raymond Miller averred the disputed line

had not changed since 1974, when he purchased the property. Raymond Miller also
Holmes County, Case No. 11CA020                                                        3


stated Appellant Atlee Miller and his sons maintained the disputed line, and both

neighbors farmed as close as possible to the disputed line without going over it. The

trial court granted preliminary injunction to Appellees via Judgment Entry filed July 6,

2009. Thereafter, Appellants filed an answer and counterclaim. The matter proceeded

through an extensive discovery process.

      {¶5}    Appellants filed a motion for summary judgment on February 23, 2011.

On April 4, 2011, Appellees voluntarily dismissed without prejudice their adverse

possession claim. Appellants filed an Amended Motion for Summary Judgment and/or

Motion for Judgment on the Pleadings. Via Journal Entry filed May 5, 2011, the trial

court denied Appellants’ motion for summary judgment, finding there were definite

factual issues which needed to be litigated. The matter proceeded to jury trial on June

13, 2011. On the day of trial, Appellants voluntarily dismissed without prejudice their

counterclaim. After hearing all the evidence and deliberating, the jury found in favor of

Appellants.

      {¶6}    Appellant filed a motion for frivolous conduct sanctions on June 18, 2011,

which the trial court denied via Judgment Entry filed November 2, 2011. It is from this

judgment entry Appellants appeal, assigning as error:

      {¶7}    “I.   THE    TRIAL     COURT         ERRED    IN    ITS    DENIAL      OF

DEFENDANT’S/APPELLANTS’ MOTION FOR FRIVOLOUS CONDUCT SANCTIONS.”

                                               I

      {¶8}    Herein, Appellants challenge the trial court’s conclusion Appellees “had

filed a good faith complaint.” Appellants submit such finding was erroneous as the

Complaint was predicated upon material falsehoods and false testimony.
Holmes County, Case No. 11CA020                                                             4


        {¶9}    R.C. 2323.51 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. R.C. 2323.51(A)(2)(a) defines “frivolous conduct” as follows:

        {¶10} “(i) * * * [conduct that] 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.

        {¶11} “(ii) * * * [conduct that] is not warranted under existing law and cannot be

supported by a good faith argument for an extension, modification, or reversal of

existing law.

        {¶12} “(iii) * * * [conduct that] consists of allegations or other factual contentions

that have no evidentiary support or, if specifically identified, are not likely to have

evidentiary support after a reasonable opportunity for further investigation or discovery.”

        {¶13} 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. R.C.

2323.51(B)(2)(a). The question of what constitutes frivolous conduct may be either a

factual determination, or a legal determination. Pingue v. Pingue, Delaware App. No.

06-CAE-10-0077, 2007-Ohio-4818, ¶ 20 citing Wiltberger v. Davis (1996), 110 Ohio

App.3d 46, 673 N.E.2d 628. A determination that the conduct is not warranted under

existing law and cannot be supported by a good faith argument for an extension,
Holmes County, Case No. 11CA020                                                             5

modification, or reversal of existing law requires a legal analysis. Lable & Co. v. Flowers

(1995), 104 Ohio App.3d 227, 233, 661 N.E.2d 782. With respect to purely legal issues,

we follow a de novo standard of review and need not defer to the judgment of the trial

court. Wiltberger, supra, at 51-52, 673 N.E.2d 628. However, we do find some degree of

deference appropriate in reviewing a trial court's factual determinations and will not

disturb such factual determinations where the record contains competent, credible

evidence to support such findings. Id.

       {¶14} In determining whether conduct is frivolous, the courts must be careful to

apply the statute so that legitimate claims are not chilled. Beaver Excavating Co. v.

Perry Twp. (1992), 79 Ohio App.3d 148, 606 N.E.2d 1067. The statute was designed to

chill egregious, overzealous, unjustifiable and frivolous action. Oakley v. Nolan, Athens

App. No. 06CA36, 2007-Ohio-4794, ¶ 16 citing 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. The test * * * 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.” Pingue, supra, citing Riston v. Butler, 149 Ohio App.3d 390, 777 N.E.2d 857,

2002-Ohio-2308, at ¶ 30, quoting Hickman v. Murray (Mar. 22, 1996), Montgomery App.

No. 15030 (citations omitted).

       {¶15} In their Complaint, Appellees claimed the right to the disputed line under

the law of acquiescence.

       {¶16} “ * * * The doctrine of acquiescence is applied in instances when adjoining

land owners occupy their respective properties up to a certain line and mutually
Holmes County, Case No. 11CA020                                                          6


recognize and treat that line as if it is the boundary that separates their properties. See

Robinson v. Armstrong, Guernsey App. No. 03CA12, 2004–Ohio–1463, at ¶ 35;

McConachie v. Meeks (Sep. 21, 1999), Richland App. No. 98CA90; Turpen v. O'Dell

(Oct. 14, 1998), Washington App. No. 97CA2300. Acquiescence rests on the practical

reality that oftentimes, the true boundary line location is uncertain and neighbors may

themselves establish boundaries. Richardson v. Winegardner (Nov. 2, 1999), Allen App.

No. 1–99–56. To apply this doctrine: (1) adjoining landowners must treat a specific line

as the boundary; and (2) the line must be so treated for a period of years, usually the

period required for adverse possession. Robinson, supra at ¶ 35; Matheson v. Morog

(Feb. 2, 2001), Erie App. No. E–00–17; McGregor v. Hanson (Jun. 16, 2000), Geauga

App. No. 99–G–2228.” Burkitt v. Shepherd, Pike App. No. 05CA754, 2006–Ohio–3673,

at ¶ 15.

       {¶17} On Verdict Form No. 1, the jury answered the following interrogatory in the

negative: “Do you find by clear and convincing evidence that [Appellees] and their

predecessors and [Appellants] and their predecessors established the fence line/tree

line as the boundary between the two properties?”1 We find the fact the jury did not find

there was clear and convincing evidence the parties had established the disputed line

as the boundary between their properties does not automatically necessitate a finding

Appellees’ action in bringing the suit was frivolous.     Appellees presented evidence

which, if believed, supported their claim. The jury merely found Appellees’ evidence did

not rise to the level of clear and convincing.




1
 On the verdict form, the words “property line” are handwritten between the words “the”
and “boundary”.
Holmes County, Case No. 11CA020                                                        7


      {¶18} R.C. 2323.51 does not purport to punish a party for raising an

unsuccessful claim. Rather, it addresses conduct that serves to harass or maliciously

injure the opposing party in a civil action or is unwarranted under existing law and for

which no good faith argument for extension, modification, or reversal of existing law

may be maintained. Independent Taxicab Assoc. of Columbus, Inc. v. Abate, Franklin

App. No. 08AP-44, 2008-Ohio-4070, ¶ 22; Ferron v. Video Professor, Inc., Delaware

App. No. 08-CAE-09-0055, 2009-Ohio-3133, ¶ 44. We find the record before us is

devoid of any evidence Appellees’ conduct was meant to harass or maliciously injure

Appellants or was unwarranted under existing law.        The fact Appellees may have

offered contradictory or inconsistent evidence regarding their use of their property does

not necessarily equate or mandate a finding of frivolous conduct.        After reviewing

Appellants’ arguments based upon the Exhibits presented at trial and the testimonial

evidence as to the actual use of the disputed property we do not find the trial court

abused its discretion in denying Appellants’ motion for sanctions.

      {¶19} Appellants’ sole assignment of error is overruled.

      {¶20} The judgment of the Holmes County Court of Common Pleas is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Edwards, J. concur                          s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY


                                            s/ Julie A. Edwards___________________
                                            HON. JULIE A. EDWARDS
Holmes County, Case No. 11CA020                                                 8


            IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


PAUL W. MILLER, ET AL.                   :
                                         :
       Plaintiff-Appellees               :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
ATLEE J. MILLER, ET AL.                  :
                                         :
       Defendant-Appellants              :         Case No. 11CA020


       For the reasons stated in our accompanying Opinion, The judgment of the

Holmes County Court of Common Pleas is affirmed. Costs to Appellants.




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ Patricia A. Delaney _________________
                                         HON. PATRICIA A. DELANEY


                                         s/ Julie A. Edwards___________________
                                         HON. JULIE A. EDWARDS
