[Cite as Tipton v. Directory Concepts, Inc., 2014-Ohio-1215.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


JOHN C. TIPTON                   :                              JUDGES:
                                 :
                                 :                              Hon. W. Scott Gwin, P.J.
     Plaintiff - Appellant       :                              Hon. John W. Wise, J.
                                 :                              Hon. Craig R. Baldwin, J.
-vs-                             :
                                 :
DIRECTORY CONCEPTS, INC., ET AL. :                              Case No. 13CA61
                                 :
                                 :
     Defendants - Appellees      :                              OPINION



CHARACTER OF PROCEEDING:                                        Appeal from the Richland County
                                                                Court of Common Pleas, Case No.
                                                                2009-CV-1853



JUDGMENT:                                                       Reversed




DATE OF JUDGMENT:                                               Marc h 21, 2014




APPEARANCES:

For Plaintiff-Appellant                                         For Defendants-Appellees

J.C. RATLIFF                                                    JAY D. WAGNER
JEFF RATLIFF                                                    Wagner Law Firm, P.L.L.
ROCKY RATLIFF                                                   P.O. Box 576
Ratliff Law Offices                                             118 Harding Way West
200 West Center Street                                          Galion, OH 44833
Marion, OH 43302
Richland County, Case No. 13CA61                                                      2

Baldwin, J.

        {¶1}   Plaintiff-appellant John Tipton appeals from the December 10, 2012 and

June 12, 2013 Judgment Entries of the Richland County Court of Common Pleas.

                          STATEMENT OF THE FACTS AND CASE

        {¶2}   Appellant John Tipton, an African-American man, was employed as a

sales representative with appellee Directory Concepts, Inc. from September of 2007

until he was terminated in December of 2008. On December 24, 2009, appellant filed a

complaint against appellee Directory Concepts, Inc, appellee Thomas Hickox, in his

individual capacity and/or in his capacity as the President and/or Statutory Agent for

appellee Directory Concepts, Inc. and Marc Hyser, appellant’s supervisor. Appellant, in

his complaint, alleged that he was subject to racial discrimination during his

employment.       Appellant, in his complaint, alleged, in part, that he was not given a

computer for approximately thirty days after he was hired while his white

contemporaries, were, that he did not receive commissions on his sales and that he was

subject to disparate treatment based upon his race.

        {¶3}   Appellees Directory Concepts, Inc. and Thomas Hickox filed an answer on

January 25, 2010. Mark Hyser filed an answer on March 24, 2010 and, on March 28,

2011, filed a Motion for Summary Judgment. Appellees, on the same date, filed a

Motion for Summary Judgment. Appellant filed a memorandum in opposition to both

Motions for Summary Judgment on May 17, 2011 and appellees filed a reply on June

2011.

        {¶4}   As memorialized in a Judgment Entry filed on August 15, 2011, the trial

court granted both Motions for Summary Judgment. The trial court, in its Judgment
Richland County, Case No. 13CA61                                                         3


Entry, found that appellant had failed to provide direct evidence of discrimination by

appellees and that he also failed to establish a prima facie case of racial discrimination

through indirect evidence because he had not shown that he was replaced by a non-

protected person or that his sales position remained opened after he was terminated.

According to the trial court, “[i]n fact, the evidence is clear that Defendant, Directory

Concepts, Inc., terminated additional sales representatives shortly after the Plaintiff was

terminated and did not replace them.”

      {¶5}   Subsequently, on September 14, 2011, appellees filed a Motion for

Attorney Fees and Other Reasonable Expenses pursuant to R.C. 2323.51. Appellees

alleged that appellant and his counsel had engaged in frivolous conduct.               On

September 15, 2011, Marc Hyser also filed a Motion for Award of ‘Fees and Expenses.

Appellant filed a memorandum in opposition to both motions on October 14, 2011.

Thereafter, on November 15, 2011, Hyser withdrew his motion.

      {¶6}   A hearing on appellees’ motion commenced on January 19, 2012 before a

Magistrate. On February 2, 2012, appellant filed a motion asking that the testimony of

Jeff Heck, counsel for Marc Hyser who had testified on January 19, 2012 as to the

reasonableness of attorney fees, be excluded. Appellant, in his motion argued that Heck

was not a disinterested party because he had represented one of the defendants in this

case. Appellees filed a memorandum contra such motion on February 13, 2012. The

Magistrate, in a Decision filed on March 7, 2012, recommended that such motion be

denied. The Magistrate found that neither Heck nor his client had any interest in the

attorney fee dispute, that Heck was a disinterested witness and that the case cited by

appellant was not applicable. The Magistrate ordered that the hearing resume on March
Richland County, Case No. 13CA61                                                       4


29, 2012. A Judgment Entry adopting the Magistrate’s Decision was filed on April 3,

2012. The hearing was later continued to May 10, 2012.

     {¶7}    The Magistrate, in a Decision filed on December 10, 2012, recommended

that appellant be ordered to pay appellees $12,547.80 in legal fees along with court

costs. The Magistrate further found that appellees had not sufficiently demonstrated the

expenses that they alleged that they had incurred as a direct and identifiable result of

this case. Appellant filed objections to the Magistrate’s Decision on December 31, 2012.

     {¶8}    Pursuant to a Judgment Entry filed on June 12, 2013, the trial court

overruled appellant’s objections to the Magistrate’s Decision. The trial court, in its

Judgment Entry, found that appellant’s objections were untimely, that appellant’s

counsel did not submit an affidavit of his own or from his office staff stating that his

office did not receive the decision until December 27, 2012 as was alleged and that

appellant did not request an extension of time to file objections. The trial court also

found that there was no error of law or other defect on the face of the Magistrate’s

Decision and adopted the same.

     {¶9}    Appellant now raises the following assignments of error on appeal:

     {¶10}   “I.    THE TRIAL COURT ERRED WHEN IT FAILED TO DISMISS

APPELLEE’S MOTIONS FOR SANCTIONS PURSUANT TO OHIO R.C. §2323.51 AND

RULE 11 BECAUSE THEY WERE NOT SUPPORTED BY EVIDENCE FROM A

DISINTERESTED PARTY THAT THE LEGAL SERVICES FOR WHICH HE SOUGHT

COMPENSATION WERE NECESSARY AND THE FEES CHARGED FOR THOSE

SERVICES WERE REASONABLE.”
Richland County, Case No. 13CA61                                                             5


      {¶11}   “II.     THE    TRIAL    COURT      ERRED      WHEN      IT   FOUND     THAT

APPELLANT’S          COMPLAINT      WAS    FRIVOLOUS       AND     FAILED    TO    DISMISS

APPELLEE’S MOTIONS FOR SANCTIONS PURSUANT TO OHIO R.C. §2323.51 AND

RULE 11 BECAUSE THERE WAS A GOOD-FAITH ARGUMENT FOR THE

EXTENSION OF EXISTING LAW THAT WOULD HAVE JUSTIFIED BRINGING – AND

MAINTAINING – A DISCRIMINATION CLAIM AGAINST APPELLEES OUT OF THE

FACTS OF THIS CASE.”

                                                  I

      {¶12}   Appellant, in his first assignment of error, argues that the trial court erred

in failing to dismiss appellees’ Motion for Attorney Fees pursuant to R.C. 2323.51.

Appellant specifically argues that appellees failed to offer testimony from a disinterested

party to corroborate the reasonableness of the requested attorney fees and that the

testimony at the hearing was insufficient to establish the reasonableness of the fees

requested.

      {¶13}   Appellant did not file a timely objection to the Magistrate's Decision. On

June 12, 2013, the trial court overruled appellant’s objections to the Magistrate’s

Decision finding, in part, that appellant’s objections were untimely, that appellant’s

counsel did not      submit an affidavit of his own or from his office staff stating that his

office did not receive the decision until December 27, 2012 and that appellant did not

request an extension of time to file objections. The trial court overruled the objections.

      {¶14}   When a party fails to file objections to a magistrate's decision, Civ.R.

53(D)(3)(b)(iv) provides that “a party shall not assign as error on appeal the court's

adoption of any factual finding or legal conclusion * * * unless the party has objected to
Richland County, Case No. 13CA61                                                          6

that finding or conclusion as required by Civ.R. 53(D)(3)(b).” Postel v. Koksal, 5th Dist.

Richland No. 08–COA–0002, 2009–Ohio–252, ¶ 25.

      {¶15}    We note, however, that authority exists in Ohio law for the proposition that

appellant’s failure to object to the Magistrate's decision does not bar appellate review for

“plain error.” In re Lemon, 5th Dist. Stark No. 2002 CA 00098, 2002–Ohio–6263. The

doctrine of plain error is limited to exceptionally rare cases in which the error, left

unobjected to at the trial court, “rises to the level of challenging the legitimacy of the

underlying judicial process itself.” See Goldfuss v. Davidson, 79 Ohio St.3d 116, 122,

1997–Ohio–401, 679 N.E.2d 1099.

      {¶16}    Appellant initially argues that the trial court erred in not excluding the

testimony of Attorney Jeffrey Heck, who was the attorney for Mark Hyser.              Heck

testified, over objection, that the legal services that appellees’ counsel, Jay Wagner,

had provided were appropriate and necessary in defense of appellees, that Attorney

Wagner’s      hourly rate of $175.00 to $195.00 per hour was reasonable, and that

$12,547.80 in legal fees was reasonable and necessary for the services that Attorney

Wagner provided in this case.

      {¶17}    Appellant specifically relied on the case of National City Bank v. Semco,

Inc., 3rd Dist. Marion No. 9-10-42, 2011-Ohio-172 for the proposition that testimony

from a disinterested witness regarding the reasonableness of attorneys’ fees is

required. However, in Grove v. Gamma Center, et al., 3rd Dist. Marion No. 9-12-41,

2013-Ohio-1734, the Third District stated that its decision in the Semco case did not

stand for the proposition that such testimony was required and also held that the trial

court erred in concluding that a shareholder could not prevail on a motion for attorney
Richland County, Case No. 13CA61                                                                     7


fees solely because he failed to provide evidence from a disinterested witness. The

court held that the trial court’s reliance on such case was misplaced. In Grove, the court

stated, in relevant part, as follows:

      {¶18}    “This Court also recently addressed the issue of attorneys' fees in Jack's

Heating, 2013–Ohio–1441. In that case, we recognized ‘that merely submitting an

attorney's itemized bill is insufficient to establish the reasonableness of the amount of

work billed.’ Id. at ¶ 24, citing Whitaker v. Kear, 123 Ohio App.3d 413, 424, 704 N.E.2d

317 (4th Dist.1997). This Court acknowledged that ‘[o]ften, parties offer expert

testimony to establish that the hours charged was reasonable in light of the litigation's

particular facts.’ Jack's Heating at ¶ 24, citing Hawkins v. Miller, 11th Dist. No.2011–L–

036, 2011–Ohio–6005, ¶ 28 and Whitaker at 424–425, 704 N.E.2d 317. However, we

also stated that ‘in some matters, the requesting party refrains from offering expert

testimony from other individuals to corroborate the attorney's self-serving testimony that

the fee request is reasonable’ Jack's Heating at ¶ 24, citing Koblenz & Koblenz v.

Summers, 8th Dist. No. 94806, 2011–Ohio–1064, ¶ 14 and Shottenstein, Zox & Dunn

Co., L.P.A. v. Reineke, 9th Dist. No. 10CA0138–M, 2011–Ohio–6201, ¶ 26–28. Thus,

this Court has recognized that testimony from a disinterested person may be the better

practice when establishing the reasonableness of attorneys' fees, but we have not gone

so far as to hold that this testimony is a threshold requirement in all circumstances….

      {¶19}    “After reviewing the applicable law, this Court disagrees with the trial

court's conclusion that Singh cannot prevail on his motions for attorneys' fees solely




1
  The complete cite is United Assn. of Journeyman and Apprentices of the Plumbing and Pipe Fitting
Industry v. Jack's Heating, Air Condition & Plumbing, Inc., 3d Dist.Hardin No. 6–12–06, 2013–Ohio–144.
Richland County, Case No. 13CA61                                                          8


because he failed to provide evidence from a disinterested witness regarding the

amount of hours spent and the hourly rate charged.” Id at paragraphs 31-32.

      {¶20}   Based on the foregoing, we find that the trial court did not commit plain

error in not excluding the testimony of Jeffrey Heck.

      {¶21}   As noted by appellees, although not specifically assigned as error,

appellant also argues that appellees should have submitted evidence as to their

counsel’s experience in litigation or racial discrimination cases, his reputation, the

difficulties or peculiarities of racial discrimination litigation or evidence that Attorney

Wagner possessed the skill required to perform the legal services properly.

      {¶22}   In the case sub judice, appellees sought attorneys’ fees as a sanction

pursuant to R.C. 2323.51. R.C. 2323.51 states, in relevant part, as follows: “(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:…

      {¶23}   “(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.”

      {¶24}   At the hearing, appellees presented their itemized bill for legal fees and

the testimony from Jeffrey Heck in support of their motion. Nothing additional was

required.

      {¶25}   Appellant’s first assignment of error is, therefore, overruled.
Richland County, Case No. 13CA61                                                              9


                                                   II

       {¶26}    Appellant, in his second assignment of error, argues that the trial court

erred in finding his complaint frivolous.

       {¶27}    As is stated above, because appellant did not timely object to the

Magistrate’s Decision, we will apply the plain error standard of review.

       {¶28}    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:

       {¶29}    “(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.

       {¶30}    “(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.

       {¶31}    “(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.”

       {¶32}    A motion for sanctions pursuant to R.C. 2323.51 requires a three-step

analysis by the trial court: (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 award. Ferron v. Video Professor Inc., 5th Dist.
Richland County, Case No. 13CA61                                                          10


Delaware No. 08–CAE–09–0055, 2009–Ohio–3133. The question of what constitutes

frivolous conduct may be either a factual determination, or a legal determination. Pingue

v. Pingue, 5th Dist. Delaware No. 06–CAE–10–0077, 2007 WL 2713763 (Sept. 18,

2007), citing Wiltberger v. Davis, 110 Ohio App.3d 46, 673 N.E.2d 628 (10th Dist.1996).

A determination that the conduct is not warranted under existing law and cannot be

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

existing law requires a legal analysis. Lable & Co. v. Flowers, 104 Ohio App.3d 227,

661 N.E.2d 782 (9th Dist.1995).

      {¶33}   Appellant, in the case sub judice, filed a complaint alleging that he was

subject to racial discrimination, including disparate treatment. In order to prove a prima

facie case of race discrimination, the plaintiff must establish the following: (1) that he or

she is a member of the protected class; (2) that he or she was subject to an adverse

employment action; (3) that he or she was qualified for the position; and (4) that

someone outside the class either replaced him or her or was treated more favorably.

Shepard v. Griffin Services, Inc., 2nd Dist. Montgomery No. 19032, 2002–Ohio–2283,

citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d

668 (1973) and Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992). See also

Janezic v. Eaton Corp., 8th Dist. No. 99897, 2013-Ohio-5436.

      {¶34}   Appellees, in their Motion for Summary Judgment, argued, in part, that

appellant could not meet the fourth prong because he was never replaced by a non-

protected person after his termination. The trial court, in its August 15, 2011 Judgment

Entry granting appellees’ Motion for Summary Judgment, found that appellant failed to

meet the fourth prong of the above test because he “provided absolutely no evidence
Richland County, Case No. 13CA61                                                        11


that he was replaced by another individual or that his sales representative position was

left open for another individual.”

      {¶35}    Thereafter, appellees, in their Motion for Attorneys Fees, argued, in

relevant part, as follows:

      {¶36}   “As discussed above, there was no evidentiary support for the Plaintiff’s

civil proceeding against Defendants DCI and Hickox.         Before the Plaintiff filed his

Complaint, neither the Plaintiff nor his counsel made any type of a reasonable inquiry to

determine whether or not the Plaintiff was ever replaced by another individual or

whether or not his position remained open. In fact, after the Plaintiff’s Complaint was

filed and extensive discovery was performed, Plaintiff’s counsel still made absolutely no

inquiry to determine whether or not the Plaintiff was replaced or whether Plaintiff’s prior

sales position remained open after he was terminated.” At the hearing, appellees

argued that appellant’s case against them was not warranted under existing law

because appellant had not provided evidence that he was replaced by a non-protected

person or that his position was left open after he was terminated. In short, the factual

basis for appellees’ motion was that appellant had not met the fourth prong of the test

set forth above.

      {¶37}   In the case sub judice, the Magistrate, in her December 10, 2012

Decision after the hearing on such motion, found that, prior to filing the lawsuit alleging

racial discrimination, appellant did not make any inquiry regarding whether appellant

had been replaced following his termination or whether his position had remained open.

The Magistrate further found that appellant’s complaint was frivolous because, by
Richland County, Case No. 13CA61                                                        12


granting appellees’ Motion for Summary Judgment, the trial court clearly rejected

appellant’s claims of disparate treatment.

      {¶38}   However, as is stated above, the fourth prong can be met by providing

evidence that a non-protected person was treated more favorably. Appellant, in the

affidavit attached to his memorandum in opposition to appellees’ Motion for Summary

Judgment, set forth specific examples of how he alleged he was treated differently than

similarly situated white employees. The issue of disparate treatment was never

addressed by the trial court.

      {¶39}   We find that the trial court erred in granting appellees’ Motion for Attorney

Fees because there was no evidence that appellant’s complaint was frivolous. As is

discussed above, appellees argued that they were entitled to attorneys fees because,

before filing his complaint, neither appellant nor his counsel made any type of a

reasonable inquiry to determine whether or not the appellant was ever replaced by

another individual or whether or not his position remained open. Appellees argued,

therefore, that appellant did not meet the fourth prong of the test set forth in McDonnell

Douglas. However, in disparate treatment cases, the fourth element may be replaced

with the requirement that the plaintiff show he or she was treated differently from

similarly-situated individuals.

      {¶40}   Moreover, at the hearing, Attorney J.C. Ratliff, who was appellant’s

witness, testified that he was asked to review the case and did not think that it was a

frivolous action. He testified that he believed that his interview of appellant revealed

instances of disparate treatment in the terms and conditions of his employment. Ratliff

testified that there was “actual proof” that appellee made appellant make 50 calls while
Richland County, Case No. 13CA61                                                        13


other employees had to do only 35, that appellant was terminated for performing below

goals while others, non-African American employees, were not, and that there was

evidence that while appellant was given less than a month of corrective action, non-

African American employees were given more. Ratliff testified that it was clear that

appellant “got disparate treatment in the terms and conditions of employment”.

Transcript at 66. When asked what he would have done if appellant had come to him

with this case, he testified as follows:

      {¶41}   A.      I would have talked to him at length, maybe even met with him

twice. I would have taken what he said at face value, and then said okay, you’re saying

these things occurred, bring those documents in and show me that you, in fact, have

been (inaudible). Once he brought those documents in, based on the status of how my

office is now, I would have referred it to you or James down in Columbus, someone who

does these types of cases.” Transcript at 67.

      {¶42}   Finally, the fact that the trial court     granted summary judgment to

appellees does not create sufficient grounds, alone, to constitute a frivolous filing under

R.C. 2323.51. Passmore v. Greene Cty. Bd. of Elections, 74 Ohio App.3d 707, 713, 600

N.E.2d 309 (9th Dist. Wayne 1991).

      {¶43}   Based on the foregoing, we find that the trial court committed plain error in

granting appellees’ Motion for Attorney Fees.

      {¶44}   Appellant’s second assignment of error is, therefore, sustained.
Richland County, Case No. 13CA61                                                  14


      {¶45}    Accordingly, the judgment of the Richland County Court of Common Pleas

is reversed.

By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.
