[Cite as Helfrich v. Madison, 2014-Ohio-1928.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

JAMES HELFRICH                                      JUDGES:
                                                    Hon. William B. Hoffman, P.J.
        Appellant                                   Hon. Sheila G. Farmer, J.
                                                    Hon. Craig R. Baldwin, J.
-vs-
                                                    Case No. 13-CA-57
TIMOTHY MADISON, ET AL.

        Appellees                                   OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Licking County Court of
                                                 Common Pleas Court, Case No. 07-CV-394


JUDGMENT:                                        Affirmed in part; Reversed in part; and
                                                 Final Judgment Entered


DATE OF JUDGMENT ENTRY:                          May 5, 2014


APPEARANCES:


For Appellant                                    For Appellees


JAMES HELFRICH, PRO SE                           MADISON AND ROSAN LLP
P.O. Box 921                                     39 East Whittier Street
Pataskala, Ohio 43062                            Columbus, Ohio 43206
Licking County, Case No. 13-CA-57                                                     2

Hoffman, P.J.


      {¶1}   Appellant, James Helfrich, appeals the June 26, 2013 Judgment Entry

entered by the Licking County Common Pleas Court awarding appellees Timothy

Madison and Madison & Rosan, LLP ("Lawyer Defendants") and Carol Strickland, David

Garner and N.R.T. Columbus Inc. d.b.a. Coldwell Banker King Thompson Realty ("Real

Estate Defendants") attorney's fees and costs in the amount of $45,566.23.

                             STATEMENT OF FACTS AND CASE

      {¶2}   In February of 2004, Appellant filed suit in the Licking County Municipal

Court against appellees Strickland, Garner and Coldwell Banker over his purchase of a

home. Appellant dismissed the Municipal Court case and brought suit for the same

claims in Licking County Common Pleas Court (Case No. 05 CV 00120) in January of

2005, seeking $27,000.00 in damages. Appellees were granted summary judgment

when Appellant failed to present any evidence of damages. In that case, Appellant

sought to amend his complaint to join the defendants' counsel, Timothy Madison, as a

defendant. The motion was denied.

      {¶3}   On March 16, 2007, Appellant filed a pro se complaint in the instant case

alleging tortious interference with a business relationship, abuse of process and fraud

against the Real Estate Defendants, whom he had sued in the prior two cases, and

against the Lawyer Defendants, who had represented the Real Estate Defendants in the

prior cases. On April 13, 2007, Appellees filed a motion to dismiss the complaint, or in

the alternative for summary judgment, and a counterclaim asserting Appellant is a

vexatious litigator, as defined by R.C. 2323.52.
Licking County, Case No. 13-CA-57                                                        3


       {¶4}   The trial court granted summary judgment on the vexatious litigator

counterclaim in favor of Appellees without addressing the motion to dismiss the

complaint. This Court reversed the trial court's granting of summary judgment and

remanded for further proceedings in Helfrich v. Madison, 5th Dist. No. 08–CA–150,

2009–Ohio–5140.

       {¶5}   Following our remand, the trial judge recused himself and a visiting judge

was assigned to conduct all further proceedings in the case. Appellant amended his

complaint on February 16, 2010, adding Mark Serrott as an additional defendant.

Appellees moved to strike the amended complaint. Before ruling on the motion to strike,

the trial court stayed all proceedings in order to rule on the counterclaim. Following a

bench trial, the court found Appellant to be a vexatious litigator who must obtain leave of

court to file or pursue a claim in any Ohio trial court. Appellant appealed. This Court

affirmed the trial court's judgment. Helfrich v. Madison, 5th Dist. No. 11–CA–26, 2012–

Ohio–551.

       {¶6}   On March 14, 2011, Appellant voluntarily dismissed all claims against

Appellees. Appellees filed a timely post-judgment motion for attorney fees and

expenses for frivolous conduct, pursuant to R.C. 2323.51. The trial court held an

evidentiary hearing on the motion. Following the hearing, the trial court found Appellant

had engaged in frivolous conduct, as defined by R.C. 2323.51, and ordered Appellant

pay Appellees' attorney fees and expenses in the amount of $118,451.05.

       {¶7}   Appellant appealed the trial court's decision in Helfrich v. Madison, Licking

App. No. 2011-CA-89, 2012-Ohio-3701. This Court again reversed the decision of the

trial court in part, and remanded the matter to the trial court holding,
Licking County, Case No. 13-CA-57                                                         4

       {¶8}   "However, we do not read our decision in Mid–Ohio so broadly as to

encompass a counterclaim that is in effect a separate action from the underlying

complaint. A party seeking to have a person declared a vexatious litigator must do so in

a civil action pursuant to R.C. 2323.52. This statute has been interpreted to require the

filing of a separate action or a counterclaim. A party seeking to have a person declared

a vexatious litigator may not do so merely by motion filed in the underlying case. Kinstle

v. Union County Sheriff's Office, 3rd Dist. No. 14–07–16, 2007–Ohio–6024, ¶ 9.

Therefore, although the filing of the instant complaint was a part of appellees' claim that

appellant is a vexatious litigator, the counterclaim seeking to have appellant declared a

vexatious litigator is a separate action and appellees must show frivolous conduct in the

defense of the counterclaim in order to be entitled to fees.

       {¶9}   "Appellees failed to present evidence that appellant acted in a frivolous

manner in his defense of the counterclaim. Certainly appellant is entitled to defend

himself when a counterclaim is filed against him. Appellant prevailed on his first appeal

of the summary judgment finding him to be a vexatious litigator because the court had

based its judgment on material that was not of evidentiary quality as required by Civ. R.

56. Further, appellee Madison specifically testified that appellant was not frivolous in

choosing to defend himself. Tr. (II) 97. While Madison testified that appellant filed things

that he would deem frivolous, there was no specific evidence presented concerning

what documents appellant filed in defense of the counterclaim that were frivolous, nor

did the trial court make specific findings of frivolous conduct in conjunction with the

counterclaim. The trial court found that the counterclaim sought to show 'vexatious

conduct,' which is tantamount to 'frivolous conduct.' While the two statutes share similar
Licking County, Case No. 13-CA-57                                                      5


definitions, the issue is not whether appellant engaged in frivolous conduct in his past

lawsuits so as to meet the definition of a vexatious litigator, but whether he engaged in

frivolous conduct specifically in relation to his defense of the vexatious litigator

complaint. Further, the trial court found that appellees should recover fees and

expenses 'for a public service beyond their own interests by restraining a vexatious

litigator's future imposition on the courts and other potential defendants.' Judgment

Entry, August 19, 2011, p. 15. However, there is no statutory or legal authority for the

award of fees on this basis.

      {¶10} "The third assignment of error is sustained.

      {¶11} "***

      {¶12} "The judgment of the Licking County Common Pleas Court is affirmed in

part and reversed in part. This cause is remanded to the court with instructions to

calculate the amount of fees and expenses incurred in conjunction solely with the

complaint filed by appellant and not including fees and expenses incurred in pursuit of

appellees' counterclaim. Costs split evenly between the parties." (Emphasis added.)

      {¶13} Appellees attempted to appeal this Court's decision to the Ohio Supreme

Court relative to this Court's denial of fees associated with the vexatious litigator

counterclaim proceedings. Appellant Helfrich attempted to cross-appeal this Court's

decision relating to fees for his engaging in frivolous conduct as to his own claims. On

March 13, 2013, the Ohio Supreme Court denied the requests of both sides for further

review.

      {¶14} On remand, the trial court conducted an evidentiary hearing on April 29,

2013 and June 19, 2013 to supplement the evidence submitted at the earlier sanction
Licking County, Case No. 13-CA-57                                                         6


hearings on June 23, 2011 and August 18, 2011. Via Opinion and Judgment Entry of

June 26, 2013, the trial court held,

       {¶15} "For its analysis, this Court divided the services and related fees that

counsel provided for the defendants into six categories: (1) services in this Court that

related solely to Mr. Helfirch's claims; (2) services in this Court that related to both Mr.

Helfrich's claims and the vexatious litigator counterclaim; (3) services in this Court that

related to the defendants' motion for sanctions pursuant to R.C. 2323.51 for both Mr.

Helfrich's claims and the vexatious litigator counterclaim; (4) services in the Court of

Appeals to defend this Court's order relating to sanctions pursuant to R.C. 2323.51 for

both Mr. Helfrich's claims and the vexatious litigator counterclaim; (5) services in the

Ohio [SIC] Ohio Supreme Court that related solely to this Court's order pursuant to R.C.

2323.51 for Mr. Helfrich's claims; and (6) services in this court on remand from the

Court of Appeals relating solely to sanctions pursuant to R.C. 2323.51 for Mr. Helfrich's

claims.

       {¶16} "Where specific services related to both Mr. Helfrich's claims and the

vexatious litigator counterclaim, there was no practical method to allocate the resulting

fees. Defendants' counsel contended that the entire fee should be recoverable. Mr.

Helfrich argued that none of it should be recoverable. Recognizing that the primary

purpose of that specific service could support either activity, this Court allocated half of

the resulting fees for all those services to their defense of Mr. Helfrich's claims."

(emphasis added).

       {¶17} From the evidence at the hearings, the trial court found Appellees

reasonably incurred:
Licking County, Case No. 13-CA-57                                                     7


                                         CATEGORY ONE

       {¶18} "$5,266.55 as attorney fees and expenses for services in this Court that

related solely to their defense of Mr. Helfrich's claims."

                                        CATEGORY TWO

       {¶19} "$11.919.40 ($23,838.81 divided by 2) as one-half of the attorney fees and

expenses for services in this Court that related to both Mr. Helfrich's claims and the

vexatious litigator counterclaim."

                                       CATEGORY THREE

       {¶20} "$11,017.69 ($22,035.38 divided by 2) as one-half of attorney fees and

expenses for services in this Court that related to the defendants' motion for sanctions

pursuant to R.C. 2323.51 for both Mr. Helfrich's claims and the vexatious litigator

counterclaim. See Ron Scheiderer & Assoc. v. London, 1998-Ohio-453, 81 Ohio St.3d

94, Syllabus ("An award of attorney fees made by a court pursuant to former R.C.

2323.51 may include fees incurred in prosecuting a motion for sanctions"); Ferron v.

Video Professor; Inc. (5th Dist.), 2009-Ohio-3133, 08-CAE-09-0055, ¶s 111-112."

                                        CATEGORY FOUR

       {¶21} "$5,110.95 ($10,221.90 divided by 2) as one-half of attorney fees and

expenses for services in the Court of Appeals to defend this Court's order relating to

sanctions pursuant to R.C. 2323.51 for both Mr. Helfrich's claims and the vexatious

litigator counterclaim. This Court lacks authority to impose sanctions for an allegedly

frivolous appeal. Mueller v. City of Vandalia, 2d. Dist. No. 17285, 1999 WL 197971 *3,

(Mar. 31, 1999). However, this Court recognizes a split of authority whether fees

reasonably incurred to defend an appeal from the sanctions order are recoverable.
Licking County, Case No. 13-CA-57                                                      8

Compare Soler v. Evans, 2006-Ohio-5402, No. 04AP-314 (10th Dist.), ¶s 24-27 and

Dudley v Dudley, 2011-Ohio-5870, 196 Ohio App.3d 671 (12th Dist.) with Early v.Toledo

Blade Co., 2013-Ohio-404, L-11-1002 (6th Dist), citing and relying on State ex: rel Ohio

Dept of Health v. Sowald (1992), 65 Ohio St.3d 338 (R.C. 2323.51 not applicable to

appeal from original action in the Court of Appeals). This Court cannot find any decision

from the Court of Appeals for the Fifth District. Relying on the Supreme Court's post-

Sowald decision in Ron Scheiderer, supra, and the amendments to R.C. 2323.51 after

at least one arguably contrary decision, this Court concludes that the better decisions

permit that recovery."

                                       CATEGORY FIVE

       {¶22} "$2,522.00 as attorney fees and expenses for services in the Ohio

Supreme Court solely to defend this Court's order and the appeals court's affirmance for

Mr. Helfrich's claims."

                                       CATEGORY SIX

       {¶23} "$9,729.64 as attorney fees and expenses for services in this Court on

remand from the Court of Appeals relating solely relating to sanctions pursuant to R.C.

2323.51 for Mr. Helfrich's claims.

       {¶24} "Therefore, this Court enters its judgment that the defendants shall

recover the total of $45,566.23 from James Helfrich pursuant to R.C. 2323.51 as

reasonable fees and expenses they inc45red [sic] in conjunction with his Complaint in

this case.”

       {¶25} Appellant appeals the trial court's judgment, assigning as error:
Licking County, Case No. 13-CA-57                                    9


        {¶26} "I. THE TRIAL COURT ERRED WHEN IT AWARDED FEES AND

EXPENSES IN EXCESS OF THE APPELLATE COURT'S ENTRY OF AUGUST 13,

2012.

        {¶27} "II. THE TRIAL COURT ERRED WHEN IT CONSIDERED FEES AND

EXPENSES FROM A FIRM'S LEDGER THAT CANNOT BE PARSED AND WHEN

THERE IS NOT ADMISSIBLE EVIDENCE.

        {¶28} "III. THE TRIAL COURT ERRED WHEN IT VIOLATED APPELLATE

RULE 12(D).

        {¶29} "IV. JUDGE MARKUS NOW OPENS THIS ENTIRE APPEAL FOR

REVIEW.

        {¶30} "V. HELFRICH ARGUES THAT THE CASE AGAINST MADISON IS NOT

FRIVOLOUS AND THAT HIS FORMER COUNSEL FAILED TO MAKE A NUMBER OF

ARGUMENTS.

        {¶31} "VI. THE TRIAL COURT ERRED WHEN IT AWARDED FEES AND

EXPENSES WITHOUT ANY ADMISSIBLE TESTIMONY OR EVIDENCE.

        {¶32} "VII. THE TRIAL COURT ERRED WHEN IT AWARDED FEES AND

EXPENSES FOR APPEALS AND THE SUPREME COURT.

        {¶33} "VIII. THE TRIAL COURT ERRED WHEN IT AWARDED FEES AND

EXPENSES FOR THE COST HEARINGS.

        {¶34} "IX. THE TRIAL COURT ERRED WHEN IT DENIED HELFRICH

DOCUMENTS AND STATEMENTS OF MONETARY REQUEST.
Licking County, Case No. 13-CA-57                                                        10


       {¶35} "X. THE TRIAL COURT ERRED WHEN IT ORDERED HELFRICH TO

PREPARE A LIST OF SERVICES THAT HELFRICH DID NOT DISPUTE AND USED

ABUSIVE LANGUAGE.

       {¶36} "XI. THE TRIAL COURT ERRED WHEN IT DENIED WITNESSES.

       {¶37} "XII. THE TRIAL COURT ERRED WHEN IT AWARDED FEES AND

EXPENSES IN EXCESS OF EVIDENCE IN THE RECORD.

       {¶38} "XIII. THE TRIAL COURT ERRED WHEN IT REIMBURSED OPPOSING

PARTY FOR GIFTS.

       {¶39} "XIV. THE COURT ERRED WHEN IT ESCALADED COURT COSTS."

                         I, II, III, VI, VII, VIII, IX, X, XI, XII, XIII, and XIV.

       {¶40} Upon review, Appellants first, second, third, sixth, seventh, eighth, ninth,

tenth, eleventh, twelfth, thirteenth and fourteenth assignments of error raise common

and interrelated issues; therefore, we will address the arguments together. We note our

order on remand was to determine fees and expenses associated with defense of

Helfrich's claims. It matters not when they were incurred relative to the trial court's stay

of proceedings with respect thereto.

       {¶41} O.R.C. 2323.51, governs the award of attorney fees, and reads in

pertinent part,

       {¶42} "(B)(1) 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
Licking County, Case No. 13-CA-57                                                            11


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.

       {¶43} "(2) An award may be made pursuant to division (B)(1) of this section

upon the motion of a party to a civil action or an appeal of the type described in that

division or on the court's own initiative, but only after the court does all of the following:

       {¶44} "(a) Sets a date for a hearing to be conducted in accordance with division

(B)(2)(c) of this section, to determine whether particular conduct was frivolous, to

determine, if the conduct was frivolous, whether any party was adversely affected by it,

and to determine, if an award is to be made, the amount of that award;

       {¶45} "(b) Gives notice of the date of the hearing described in division (B)(2)(a)

of this section to each party or counsel of record who allegedly engaged in frivolous

conduct and to each party who allegedly was adversely affected by frivolous conduct;

       {¶46} "(c) Conducts the hearing described in division (B)(2)(a) of this section in

accordance with this division, allows the parties and counsel of record involved to

present any relevant evidence at the hearing, including evidence of the type described

in division (B)(5) of this section, determines that the conduct involved was frivolous and

that a party was adversely affected by it, and then determines the amount of the award

to be made. If any party or counsel of record who allegedly engaged in or allegedly was

adversely affected by frivolous conduct is confined in a state correctional institution or in

a county, multicounty, municipal, municipal-county, or multicounty-municipal jail or
Licking County, Case No. 13-CA-57                                                          12


workhouse, the court, if practicable, may hold the hearing by telephone or, in the

alternative, at the institution, jail, or workhouse in which the party or counsel is confined.

       {¶47} "(3) The amount of an award made pursuant to division (B)(1) of this

section that represents reasonable attorney's fees shall not exceed, and may be equal

to or less than, whichever of the following is applicable:

       {¶48} "(a) If the party is being represented on a contingent fee basis, an amount

that corresponds to reasonable fees that would have been charged for legal services

had the party been represented on an hourly fee basis or another basis other than a

contingent fee basis;

       {¶49} "(b) In all situations other than that described in division (B)(3)(a) of this

section, the attorney's fees that were reasonably incurred by a party.

       {¶50} "(4) An award made pursuant to division (B)(1) of this section may be

made against a party, the party's counsel of record, or both.

       {¶51} "(5)(a) In connection with the hearing described in division (B)(2)(a) of this

section, each party who may be awarded reasonable attorney's fees and the party's

counsel of record may submit to the court or be ordered by the court to submit to it, for

consideration in determining the amount of the reasonable attorney's fees, an itemized

list or other evidence of the legal services rendered, the time expended in rendering the

services, and whichever of the following is applicable:

       {¶52} "(i) If the party is being represented by that counsel on a contingent fee

basis, the reasonable attorney's fees that would have been associated with those

services had the party been represented by that counsel on an hourly fee basis or

another basis other than a contingent fee basis;
Licking County, Case No. 13-CA-57                                                       13


       {¶53} "(ii) In all situations other than those described in division (B)(5)(a)(i) of

this section, the attorney's fees associated with those services.

       {¶54} "(b) In connection with the hearing described in division (B)(2)(a) of this

section, each party who may be awarded court costs and other reasonable expenses

incurred in connection with the civil action or appeal may submit to the court or be

ordered by the court to submit to it, for consideration in determining the amount of the

costs and expenses, an itemized list or other evidence of the costs and expenses that

were incurred in connection with that action or appeal and that were necessitated by the

frivolous conduct, including, but not limited to, expert witness fees and expenses

associated with discovery."

                                       CATEGORY ONE

       {¶55} Initially, we find the trial court properly awarded attorney fees and

expenses for services in the trial court related solely to the defense of Helfrich's claims

in the amount of $5,266.55.

       {¶56} Appellant Helfrich specifically questions the award of costs and attorney

fees relative to three items: a March 30, 2007 Draft of Letter to Helfrich in the amount of

$61.05, an April 30, 2007 letter and an April 16, 2007 travel expense incurred in the

filing of a memo. Upon review of the exhibits, the April 30, 2007 letter and April 16,

2007 travel expense were included as Category 2 expenses, infra.           The remaining

March 30, 2007 letter to Helfrich was allowed by the trial court as a Category I expense.

However, for purpose of this assignment of error, it matters not when the expense was

incurred as long as the expense was incurred in defense of the claims.
Licking County, Case No. 13-CA-57                                                      14


       {¶57} Accordingly, we do not find the trial court erred in allowing the attorney

fees and expenses in Category I.

                         CATEGORY TWO AND CATEGORY THREE

       {¶58} At the evidentiary hearing herein, Attorney Darcy Shaffer testified as to the

law firms time sheets provided to her by Attorney Kristin Rosan. (Exhibit Q). Attorney

Rosan prepared the time sheets and had personal knowledge thereof, while Attorney

Shaffer could merely testify as to the authenticity of the records without having personal

knowledge of the records.

       {¶59} Evidence Rule 803(6) provides,

       {¶60} "(6) Records of regularly conducted activity. A memorandum, report,

record, or data compilation, in any form, of acts, events, or conditions, made at or near

the time by, or from information transmitted by, a person with knowledge, if kept in the

course of a regularly conducted business activity, and if it was the regular practice of

that business activity to make the memorandum, report, record, or data compilation, all

as shown by the testimony of the custodian or other qualified witness or as provided by

Rule 901(B)(10), unless the source of information or the method or circumstances of

preparation indicate lack of trustworthiness. The term “business” as used in this

paragraph includes business, institution, association, profession, occupation, and calling

of every kind, whether or not conducted for profit."

       {¶61} While Attorney Stephen Moyer testified at the previous hearing on April

29, 2013 as to the reasonableness and necessity of all of the fees charged, Attorney

Shaffer did not have personal knowledge as to what portion of the charges involved the

vexatious litigation claim as opposed to Helfrich's claims. She was unable to separate
Licking County, Case No. 13-CA-57                                                         15


those charges directly related to the representation of each as this Court previously

determined was necessary.

       {¶62} The trial court awarded one-half of the attorney fees and expenses for

services in the trial court related to both Helfrich's claims and the vexatious litigator

counterclaim. The trial court awarded $11,919.40 representing one-half of the attorney

fees and expenses related for both defense of Helfrich's claims and the prosecution of

the vexatious litigator counterclaim. The court also awarded $11,017.69 representing

one-half of attorney fees and expenses associated with the motion for sanctions for both

defense of Helfrich's claims and prosecution of the vexatious litigator counter-claim.

       {¶63} The moving party seeking fees has the burden of demonstrating the

reasonableness of the fees. Given our previous Opinion, merely submitting a copy of

the billing records is insufficient in this case. At the evidentiary hearing herein, Attorney

Shaffer testified the timesheets involved blocks of time which could not be separated

out. Tr. at 61. Shaffer further testified she did not have knowledge what percentage on

the time sheets separated into which category. Tr. at 66. She testified there was no

possible way to divide the charges by claim. Tr. at 70.

       {¶64} The trial court's judgment entry admits "there was no practical method to

allocate the resulting fees," and the services "could support either activity." We find, the

trial court's division of the fees 50/50 was arbitrary and speculative. Appellees had the

burden of proof to demonstrate the reasonableness and necessity of said fees. We find

they failed to do so.
Licking County, Case No. 13-CA-57                                                         16


                                     CATEGORY FOUR FEES

         {¶65} R.C. 2323.51 allows for the recovery of fees for the civil action "or appeal."

The Tenth District, in Jackson v. Bellomy, 10th Dist. 01AP-1397, 2002-Ohio-6495,

upheld the award of fees incurred in defending an appeal of a trial court judgment.

Accordingly, we find the trial court properly allowed Appellees fees and expenses for

services in this Court of Appeals to defend that portion of the trial court's order relating

to sanctions pursuant to R.C. 2323.51 for Helfrich's claims. Appelles were not entitled

to fees and expenses for prosecution of the vexatious litigator claim. We have reviewed

the briefs submitted by the parties in Helfrich v. Madison, Licking App. No. 2011-CA-89,

2012-Ohio-3701, and this Court's Opinion disposing of that appeal.                 We find

considerably more than one-half went to challenging the trial court's finding Helfrich

engaged in frivolous conduct in filing his claims. We find the trial court's award of only

one-half of the fees associated with the prior appeal was very conservative.1 We find

Appellees are entitled to the amount of $5,1109.95 as awarded by the trial court.

                                      CATEGORY FIVE FEES

         {¶66} Appellees were not entitled to fees and expenses in the Ohio Supreme

Court as to the appeal they initiated in the Ohio Supreme Court, as they were not

"defending this Court's order". However, Appellees were entitled to fees and expenses

relative to their response to Helfrich's separate appeal to the Ohio Supreme Court.

Upon review of the record, we find the evidence supports a judgment in the amount of

$1,156.25 for attorney fees and expenses incurred by Appellees in responding to and

defending Helfrich's appeal to the Ohio Supreme Court.



1
    Appellees did not file a cross-appeal contesting this amount.
Licking County, Case No. 13-CA-57                                                   17


                                    CATEGORY SIX FEES

       {¶67} The trial court awarded Appellees an additional $9,729.64 for attorney

fees and expenses following remand relating solely to their motion for sanctions for

defense of Mr. Helfrich's claims.    Here the issue is not the intermingling of fees

associated with the vexatious litigator counterclaim as was the problem in Category Two

and Category Three. We previously decided supra such fees were not recoverable.

       {¶68} The order on remand was for the determination of fees related solely to

the defense of Helfrich's claims regardless of when they were incurred. The statute

categorically permits the recovery of attorney fees associated with Appellant's motion

for fees pursuant to R.C. 2323.51. Accordingly, we find Appellees were entitled to

attorney fees and expenses subsequent to remand in the amount of $9,729.64.

       {¶69}   Based upon the foregoing, the judgment of the Licking County Court of

Common Pleas is affirmed in part; and reversed in part. We find the total amount of

attorney fees and expenses properly to be awarded Appellees is $21,263.39.

                                          IV. AND V.

       {¶70} Appellant's fourth and fifth assignments of error raise common and

interrelated issues; therefore, we will address those arguments together.

       {¶71} Upon review of the fourth and fifth assigned errors, the arguments

presented were raised or capable of being raised on direct appeal. The arguments

were previously addressed by this Court on prior appeal and are thus law of the case.

Accordingly, the fourth and fifth assigned errors are barred by the doctrine of res

judicata.

       {¶72} The fourth and fifth assigned errors are overruled.
Licking County, Case No. 13-CA-57                                       18


      {¶73} The June 26, 2013 Judgment Entry of the Licking County Court of

Common Pleas is affirmed in part, and reversed in part.

By: Hoffman, P.J.

Farmer, J. and

Baldwin, J. concur
