[Cite as Merino v. Salem Hunting Club, 2012-Ohio-4553.]
                         STATE OF OHIO, COLUMBIANA COUNTY

                                 IN THE COURT OF APPEALS

                                      SEVENTH DISTRICT


JAMES MERINO                                     )        CASE NO. 11 CO 2
                                                 )
        PLAINTIFF-APPELLANT                      )
                                                 )
VS.                                              )        OPINION
                                                 )
THE SALEM HUNTING CLUB, et al                    )
                                                 )
        DEFENDANTS-APPELLEES                     )

CHARACTER OF PROCEEDINGS:                                 Civil Appeal from the Court of Common
                                                          Pleas of Columbiana County, Ohio
                                                          Case No. 05 CV 381

JUDGMENT:                                                 Affirmed in part.
                                                          Reversed in part.

APPEARANCES:

For Plaintiff-Appellant:                                  Attorney John A. Burnworth
                                                          Krugliak, Wilkins, Griffiths, Dougherty
                                                          4775 Munson Street, N.W.
                                                          P.O. Box 36963
                                                          Canton, OH 44735-6963

For Defendants-Appellees:                                 Atty. K. Bret Apple
                                                          243 North Lincoln Avenue
                                                          Salem, OH 44460

JUDGES:

Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                                          Dated: September 28, 2012
[Cite as Merino v. Salem Hunting Club, 2012-Ohio-4553.]
WAITE, P.J.


        {¶1}    Appellant James Merino appeals the decision of the Columbiana

County Court of Common Pleas to award attorney fees to Appellee, The Salem

Hunting Club (“Club”). This is the second time this matter has been before us on

appeal. In our first appellate review, we determined that there were material facts in

dispute as to Appellant's claims of qualified nuisance and negligence, and that

summary judgment in favor of the Club was not appropriate.             The case was

remanded for trial on these matters. Appellant did not prevail at trial, and Appellee

subsequently filed a claim pursuant to R.C. 2323.51 for attorney fees based on

alleged frivolous conduct by Appellant. The trial court awarded the requested fees,

leading to this appeal. Appellant argues that Appellee's motion for fees was untimely

filed, and also contends that his claims were not frivolous based on his good faith

reliance on the report of an expert witness and on our prior Opinion in this matter

finding that there were genuine issues of material fact in dispute.       Appellant is

incorrect that the motion for fees was not timely filed, but we agree that his conduct

was not frivolous, particularly since we found in Appellant's favor in the prior appeal

and remanded the case for trial. Merino v. Salem Hunting Club, 7th Dist. No. 07 CO

16, 2008-Ohio-6366 (Merino I). The judgment of the trial court is hereby reversed.

                                         BACKGROUND

        {¶2}    Appellant owns property at 1069 Benton Road, Salem, Ohio, adjacent

to the Club. On January 17, 2003, Appellant filed a complaint against the Club. He

voluntarily dismissed the complaint on April 13, 2004, and refiled the action on April

8, 2005. He raised claims sounding in trespass, nuisance per se, qualified nuisance,
                                                                                     -2-

and negligence. The trial court granted summary judgment to the Club on May 2,

2007, on all claims. Appellant filed the first appeal in this matter.

       {¶3}   We ruled in Merino I that based on the record, genuine issues of

material fact existed with respect to the qualified nuisance and negligence claims.

We noted that the evidence presented by Appellant's expert witness, Mr. Daniel

Clevenger, “does at least create a genuine issue of material fact as to whether the

Club breached its duty of care by failing to prevent bullets from escaping from its

property.” Id. at ¶36. We concluded that “[s]ummary judgment was not appropriate

in this case as there exists genuine issues of material fact as to whether the

configurations of the shooting ranges at the Club created, ‘potentially or

unreasonably dangerous conditions to exist,’ * * * and whether Appellant came to the

nuisance or has seen it escalate to the point of being actionable.” Id. at ¶39.

       {¶4}   On remand, the case proceeded to a bench trial. Appellant presented

testimony from four witnesses and introduced a number of exhibits. After Appellant

rested his case, the Club requested that the judge issue a directed verdict. The

Club’s request was granted. On July 30, 2010, the trial court filed its judgment entry

dismissing the complaint with prejudice. The trial court found that Appellant “failed to

prove an essential element of his claim in that [his] own expert on the design and

maintenance of a shooting range indicated he was not able to state an opinion that

the Hunting Club was negligent in its operation of its shooting range. He further

testified that the fact that some bullets may have ricocheted from protective mounds

on [the Club's] property onto [Appellant's] property did not amount to negligence.”

(7/30/10 J.E., p. 2.)
                                                                                         -3-

       {¶5}   On August 30, 2010, the Club filed a motion for attorney fees pursuant

to R.C. 2323.51. The motion alleged that Appellant engaged in frivolous conduct by

failing to produce an expert witness who could testify that the Club was negligent.

The Club requested attorney fees in the amount of $8,381.25 and expert witness

fees totaling $4,346, extending back to expenses incurred from the original filing of

the case in 2003. Appellant responded to the motion by arguing that the defendant

could not recover fees that occurred from the original complaint because it was

voluntarily dismissed and because the motion for fees was not filed within 30 days of

the voluntary dismissal. Appellant cited R.C. 2323.51(B)(1) in support. Appellant

also argued that his litigation could not be considered frivolous because he did obtain

an expert who was expected to testify as to negligence, based on the expert's prior

report and affidavit, and that this Court had already held that his expert evidence

raised genuine issues of material fact in dispute that required a trial.       Appellant

maintains that he should be able to rely on his expert witness evidence and on our

ruling in Merino I at least to the extent that he has established that his claims were

not frivolous, even though he did not ultimately prevail at trial.

       {¶6}   A hearing was held on the motion for fees on November 15, 2010. The

trial court issued its judgment on December 17, 2010. The court denied the expert

witness fees because it did not find any evidence that those fees were reasonable.

The court granted the attorney fees request of $8,381.25, on the grounds that

Appellant “present[ed] no evidence of negligence,” and that “[w]ithout such evidence

the Court finds his ‘[C]onduct consists of allegations or other factual contentions that

have no evidentiary support....’ O.R.C. 2323.51(B)(1)(a)(iii).” (12/17/10 J.E., p. 5.)
                                                                                     -4-

      {¶7}   On January 14, 2011, Appellant filed a stay of execution of the

judgment, which was granted by the trial court.

      {¶8}   The Club has failed to file a brief on appeal. We may “accept the

appellant's statement of the facts and issues as correct and reverse the judgment if

appellant's brief reasonably appears to sustain such action.” App.R. 18(C).

                          ASSIGNMENT OF ERROR NO. 1

      THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES FOR A

      CASE DISMISSED IN 2004, WHERE THE APPELLEE FAILED TO

      TIMELY REQUEST ATTORNEY FEES UNDER REVISED CODE

      2323.51(B)(1).

      {¶9}   Appellant first submits that the Club was required to submit a request

for fees relating to the originally filed complaint within thirty days of the voluntary

dismissal of that complaint on April 13, 2004.             Appellant points to R.C.

2323.51.(B)(1), which states: “[A]t 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.” Appellant contends that the motion for fees, filed on August 30, 2010, was

over six years too late and should have been denied. We do not agree.

      {¶10} A trial court has sound discretion to determine whether to award

sanctions under R.C. 2323.51, and its decision will not be reversed absent an abuse
                                                                                        -5-

of discretion. State ex rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-Ohio-5350, 957

N.E.2d 19, ¶10-11. To prove an abuse of discretion, the appellant must establish

that the decision was unreasonable, arbitrary, or unconscionable. Id. at ¶11.

       {¶11} R.C. 2323.51(B)(1) limits a party from filing a motion for frivolous

conduct more than thirty days after “final judgment.” The Ohio Supreme Court has

construed the word “judgment” in an earlier version of R.C. 2323.51(B)(1) to mean a

judgment that consists of a final appealable order. Soler v. Evans, St. Clair & Kelsey,

94 Ohio St.3d 432, 436, 763 N.E. 2d 1169 (2002). Not every complaint that is filed,

though, ends with a final judgment or final appealable order.           There is no final

judgment when a case is voluntarily dismissed. A case that has been voluntarily

dismissed is treated as though it had never been filed. Zimmie v. Zimmie, 11 Ohio

St.3d 94, 95, 464 N.E.2d 142 (1984). Consequently, a voluntary dismissal pursuant

to Civ.R. 41(A) does not adjudicate the merits of a claim, does not produce a

prevailing party, and does not end in a final appealable order. Champion Mall Corp.

v. Bilbo Freight Lines, Inc., 81 Ohio App.3d 611, 615, 611 N.E.2d 969 (1992).

       {¶12} We are aware that some courts have been asked to decide whether the

time limit in R.C. 2323.51(B)(1) applies when a case has been voluntarily dismissed

and no further action is taken in the case. See, e.g., Baker v. AK Steel, 12th Dist.

No. CA2005-07-188, 2006-Ohio-3895.          Although a voluntary dismissal, in and of

itself, is not a final judgment, it has been treated at times as an event that triggers the

running of the time limit to file a motion for frivolous conduct fees in order to enforce

the spirit, if not the letter, of R.C. 2323.51(B)(1). The issue before us, however, is

how to apply the thirty-day filing limit in R.C. 2323.51(B)(1) when a case has been
                                                                                       -6-

voluntarily dismissed and then refiled under the saving statute, R.C. 2305.19. The

saving statute allows for the refiling of a case one year after it has been voluntarily

dismissed.

       {¶13} When a complaint is refiled under the saving statute, the case relates

back to the date of the original complaint for purposes of satisfying any statute of

limitations problems. The events being litigated are those that relate to the original

filing. When the refiled case terminates, it terminates with respect to both the original

filing and the refiled case. We see no reason why a motion for attorney's fees for

frivolous conduct under R.C. 2323.51 should not relate back to the original filing,

since the cause of action itself relates back to the original filing. The triggering event

for starting the 30-day time period in R.C. 2323.51 is a “final judgment,” and the date

of final judgment of the negligence and nuisance claims in this case was July 30,

2010. That date should trigger the time limit for the filing of frivolous conduct fees for

any alleged frivolous conduct.

       {¶14} This comports with the reasoning in our Opinion in Olivito v.

Cavanaugh, 7th Dist. Nos. 90-J-33, 90-J-39, 1992 WL 398435 (Dec. 30, 1992).

Olivito was relied on by the Supreme Court in its Soler decision. Soler involved a

multi-party lawsuit where plaintiff dismissed voluntarily his remaining claims against

defendants after some defendants had been dismissed from suit in summary

judgment. Once plaintiff dismissed, defendants filed a motion for attorney fees based

on plaintiff’s allegedly frivolous suit, but plaintiff claimed this motion was time-barred

as to the defendants who had earlier been granted summary judgment, because
                                                                                       -7-

more than 21 days (under an earlier version of R.C. 2323.51) had lapsed as to these

defendants. The Supreme Court explained its reliance on Olivito as follows:

      Olivito found that the statutory language supports the conclusion that a

      party is not required to wait until the end of the litigation to file a motion

      for sanctions. However, Olivito found that it is not necessary that the

      moving party always file the motion within twenty-one days of the entry

      of any judgment that could pertain to frivolous conduct. Instead, Olivito

      believed that the statutory language gives the moving party some

      discretion in deciding when to file the motion. Thus, Olivito found that

      the statute permits the moving party to file the motion at any time prior

      to the start of the trial or within twenty-one days after the entry of

      judgment, but that the term “judgment” should be interpreted as being

      synonymous with the term “final order” as defined in R.C. 2505.02.

Soler at 435.

      {¶15} The Supreme Court accepted our reasoning and incorporated it into its

holding: “We agree with the reasoning espoused in Olivito. The plain meaning of the

statute provides a means for an immediate judicial determination and a speedy

sanctioning of such abuse. However, the aggrieved party also has the option of

waiting until the conclusion of the action to seek sanctions. Construing the word

'judgment' as used in the statute to mean a final appealable order serves the

remedial purpose of the statute.” Id. at 436.

      {¶16} Thus, based on our earlier Olivito decision, as it is incorporated into

Soler, we hold that parties may file for frivolous conduct fees at the earliest possible
                                                                                     -8-

moment, or they may wait until final judgment; the date the final appealable order is

filed resolving all claims in the case.    In the instant appeal, the initial voluntary

dismissal did not trigger any final appealable order. The case was refiled, and the

final appealable order was issued July 30, 2010, when the court granted a directed

verdict. The motion for fees was filed within thirty days of the date of final judgment.

The trial court correctly considered whether fees should be awarded from the date of

the initial filing until the date of final judgment.     Accordingly, Appellant’s first

assignment of error is overruled.

                          ASSIGNMENT OF ERROR NO. 2

      THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES FOR

      FRIVOLOUS CONDUCT, WHERE APPELLANT RELIED ON AND

      PRESENTED        COMPETENT          AND   CREDIBLE       EVIDENCE      OF

      NEGLIGENCE.

      {¶17} Appellant's second argument is that frivolous conduct fees should not

have been awarded because he attempted to obtain appropriate expert witness

evidence, and we were convinced that there were enough material facts in dispute to

warrant remand of the case to the trial court for trial, as explained in Merino I. There

is no argument from the Club in response. We accept Appellant's argument as

reasonable and sustain his second assignment of error. We agree with Appellant

that he should have been able to rely on our remand in Merino I as evidence that his

litigation was not frivolous. Further, the Club has not filed a brief in this appeal to

contradict Appellant's assertions that there were material questions of fact in dispute

about the negligence claim, or that he presented evidence of negligence at trial. The
                                                                                            -9-

definition     of   frivolous   conduct   relied   on   by   the   trial   judge   under   R.C.

2323.51(A)(2)(a)(iii) refers to allegations that have no evidentiary support or are not

likely to have evidentiary support. This definition does not apply here. Despite the

fact that Appellant’s expert witness changed his testimony at trial, Appellant fully

expected his expert witness to present the necessary evidence to support his

negligence and nuisance claims at trial. Unfortunately, Appellant’s expert changed

his testimony at trial. Hence, the fact that Appellant survived summary judgment in

the prior appeal and attempted to present that same evidence at trial should be proof

that Appellant's claims were not frivolous, even though his evidence ultimately fell

short. Wrinch v. Miller, 183 Ohio App.3d 445, 2009-Ohio-3862, 917 N.E.2d 348, ¶55

(9th Dist.).

       {¶18} The trial court’s decision to grant a directed verdict to the Club does

not, in and of itself, justify the granting of fees under R.C. 2323.51. The decision to

grant or deny a motion for directed verdict is not determinative of whether frivolous

conduct occurred. L & N Partnership v. Lakeside Forest Assn., 183 Ohio App.3d

125, 2009-Ohio-2987, 916 N.E.2d 500, ¶46 (10th Dist.).

       {¶19} For all the aforementioned reasons, we sustain Appellant's second

assignment of error.

                                          CONCLUSION

       {¶20} Appellant has appealed the trial court’s decision to grant Appellee fees

for frivolous conduct pursuant to R.C. 2323.51. Appellant first argues that the Club

filed the motion for fees too late, at least with respect to fees incurred prior to the

refiling of the case in 2005. Appellant contends that the motion should have been
                                                                                       -10-

filed within thirty days of the voluntary dismissal of the first complaint on April 13,

2004. Based on our interpretation of R.C. 2323.51(B)(1) and the Ohio Supreme

Court's ruling in Soler, along with our prior holding in Olivito, we conclude that the

Club was permitted to wait until the date of final judgment to file for fees relating back

to the original complaint in the case.        Therefore, we overrule Appellant's first

assignment of error.

       {¶21} Appellant also argues that he should not have been assessed fees for

frivolous conduct when he procured an expert witness who created a genuine dispute

of material facts to overcome summary judgment, as this Court held when we

remanded the case to the trial court in Merino I, and when this expert testified at trial,

even though the expert changed his testimony. Based on this record, he did attempt

to present evidence of negligence and qualified nuisance. Although Appellant did not

ultimately prevail at trial in part because his expert did not testify entirely as expected,

he did present some evidentiary support for his claims both at the summary judgment

stage and at the trial itself.    Therefore, his claims cannot be determined to be

frivolous, and we sustain his second assignment of error. The judgment of the trial

court is reversed as to the decision to grant attorney fees to the Club.


Vukovich, J., concurs.

DeGenaro, J., dissents; see dissenting opinion.
                                                                                     -11-

DeGenaro, J., dissenting:
       {¶22} The trial court erred in awarding attorney fees incurred in the original
action and I would reverse and vacate that award. But the trial court did not abuse its
discretion in determining that Merino failed to provide evidentiary support for his claim
at trial and awarding Salem Hunting attorney fees. Thus, I must respectfully dissent
from the majority's disposition of both assignments of error.
       {¶23} The first assignment of error raises an issue unresolved by the
majority's opinion: when a party voluntarily dismisses a case under Civ.R. 41(A) but
does not refile the case, what event triggers the statutory time limit for filing a
sanctions motion under R.C. 2323.51?            The majority notes that other appellate
districts have addressed this question, but it concludes that the issue before us is
only determining what triggers the time limit when a case has been voluntarily
dismissed and then refiled within one year pursuant to R.C. 2305.19. Thus, the
majority does not discuss the holdings of these other cases or their effect on the facts
of this case. Although this case does not directly involve a voluntarily dismissed case
that is not refiled, I believe a complete analysis cannot be made without reconciling
the result of the case sub judice with the precedent set by our sister districts.
       {¶24} Ohio courts have interpreted a Civ.R. 41(A) voluntary dismissal as the
triggering event for filing a sanctions motion in order to enforce the legislative intent
of R.C. 2323.51(B)(1).      For example, the Twelfth District held that a motion for
sanctions pursuant to R.C. 2323.51 filed nine months after the plaintiff voluntarily
dismissed the case without prejudice was untimely.          Baker at ¶ 26.     The court
reasoned: "In order to give effect to the legislative intent behind this statute, the time
frame within which a R.C. 2323.51 motion for sanctions is filed cannot be perpetual.
Thus, it would follow that a trial court may consider a motion for sanctions under R.C.
2323.51 following a Civ.R. 41(A) voluntary dismissal only where the motion is filed
within the statutory deadlines." Id. at ¶ 25.
       {¶25} Likewise, the Eighth District held that although the trial court's dismissal
of the case without prejudice was not a final, appealable order, the defendant's
motion for sanctions filed 40 days after the dismissal was untimely because it was not
                                                                                     -12-

filed within the statutory time limit. Edwards v. Lopez, 8th Dist. No. 95860, 2011-
Ohio-5173, ¶ 10, 13.
       {¶26} In concluding that a motion for sanctions under R.C. 2323.51 must be
filed within the statutory time limit after a Civ.R. 41(A) voluntary dismissal, the courts
in Baker and Edwards relied upon the Ohio Supreme Court's reasoning in Soler:
               By enacting R.C. 2323.51, the General Assembly sought to
               provide a remedy for those harmed by frivolous conduct. Yet, by
               the same token, the General Assembly manifested its intent that
               there be a cutoff time for this sanction to be imposed.        This
               purpose is served by giving the aggrieved party the option of
               filing the sanctions motion at any time prior to trial or within
               twenty-one days of the last judgment rendered in the case. This
               would assure that twenty-one       days after the entry of final
               judgment, the proceedings would be over.
Id. at 436.
       {¶27} Here, Merino voluntarily dismissed the original action without prejudice
pursuant to Civ.R. 41(A)(1)(a) on April 13, 2004 and refiled the case on April 8, 2005,
almost one year later. Under the majority's analysis, the August 30, 2010 motion for
attorney fees was timely because Salem Hunting filed it within 30 days of the final
judgment in the refiled case, when the trial court granted the directed verdict. The
majority concludes that the refiled case relates back to the original case for purposes
of the statute of limitations.
       {¶28} Yet under the majority's analysis, had Merino not refiled his case, there
would be no final appealable order to trigger the filing limit for a sanctions motion.
Unless the voluntary dismissal was treated as the triggering event as in Baker and
Edwards, the need for a time limit in which a party may file a sanctions motion would
be completely ignored. Another option for the triggering event could be the one year
savings statute plus one day, although this solution is less sound when considering
the need for a timely resolution of the issue. Thus, I agree with the Baker and
Edwards holdings that a Civ.R. 41(A) voluntary dismissal is the event triggering the
filing limit for a sanctions motion when the case is not refiled.
                                                                                       -13-

          {¶29} But when considering the holdings in Baker and Edwards with the
majority's holding, the results are difficult to reconcile.       If a plaintiff voluntarily
dismisses his case without prejudice, the defendant would not know if the case would
be refiled or not within the one year savings statute. Thus, if a defendant filed his
motion for sanctions within the filing limit after the voluntary dismissal, his motion
would be timely. But if the defendant waited longer than 30 days to file his motion,
then his motion may or may not be timely based upon whether the plaintiff chose to
refile the case up to one year later. And if the plaintiff did refile the case, then the
sanctions motion could be heard, as in the case sub judice, years after the frivolous
conduct occurred in the original case.
          {¶30} I believe that this result is impractical and does not conform to the
legislative intent as discussed in Soler, Baker, and Edwards. Thus, I would follow the
rationale of our sister districts and hold that a Civ.R. 41(A) voluntary dismissal,
regardless of whether the case is refiled, is the triggering event for filing a sanctions
motion under R.C. 2323.51. This holding would give effect to the legislative intent
that there be a cutoff time for the sanctions to be imposed. Therefore, I would find
that Salem Hunting's motion, filed well over 21 days after Merino voluntarily
dismissed the original action without prejudice, exceeded the statutory time limit.1
Accordingly, I would find that the trial court erred in awarding attorney fees incurred in
the original action and I would reverse and vacate that award.
          {¶31} Turning to the second assignment of error, I find that the trial court did
not abuse its discretion in determining that Merino's conduct was frivolous and
awarding attorney fees to Salem Hunting.
          {¶32} To determine whether Merino properly supported his claims of
negligence at trial, it is necessary to examine both the law on qualified nuisance
claims and the evidence Merino presented at trial in an attempt to establish a
qualified nuisance claim.
          {¶33} In Merino I, this court set forth the applicable law regarding qualified
nuisance claims:


1
    Under the former version of the statute applicable in 2004.
                                                                             -14-

"Nuisance" is defined as, "the wrongful invasion of a legal right or
interest." Taylor v. Cincinnati (1944), 143 Ohio St. 426, 432, 55 N.E.2d
724.   "Wrongful invasion" encompasses the use and enjoyment of
property or of personal rights and privileges. Id.

A "private nuisance" is, "a nontrespassory invasion of another's interest
in the private use and enjoyment of land." Brown v. Scioto Cty. Bd. of
Commrs. (1993), 87 Ohio App.3d 704, 712, 622 N.E.2d 1153. Unlike a
public nuisance, a private nuisance threatens only one or few persons.
Taylor, supra, at 442, 55 N.E.2d 724, citing McFarlane v. Niagara Falls
(1928), 247 N.Y. 340, 160 N.E. 391.

       A private nuisance may be further designated as absolute or
qualified:

"An absolute nuisance is based on either intentional conduct or an
abnormally dangerous condition that cannot be maintained without
injury to property, no matter what care is taken. A qualified nuisance is
essentially a tort of negligent maintenance of a condition that creates an
unreasonable risk of harm, ultimately resulting in injury." State ex rel.
R.T.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-6716, 780 N.E.2d
998, ¶ 59.

Strict liability is imposed when an absolute nuisance is found. Taylor,
supra, at paragraph two of the syllabus; State ex rel. Schoener v.
Hamilton Cty. Bd. of Commrs. (1992), 84 Ohio App.3d 794, 799, 619
N.E.2d 2.      In contrast, "qualified" nuisance is premised upon
negligence.

A qualified nuisance arises from a failure to exercise due care. Taylor,
at 436, 55 N.E.2d 724.       Thus, "[t]he allegations of nuisance and
negligence therefore merge, as the nuisance claims rely upon a finding
of negligence." Allen Freight Lines, Inc. v. Consol. Rail Corp. (1992),
                                                                                   -15-

       64 Ohio St.3d 274, 276, 595 N.E.2d 855.

       "In an action based upon the maintenance of a qualified nuisance, the
       standard of care is that care that a prudent man would exercise in
       preventing potentially or unreasonably dangerous conditions to exist; it
       is the same standard of care required of owners and occupiers of land
       toward business invitees." Kramer v. Angel's Path, L.L.C., 174 Ohio
       App.3d 359, 2007-Ohio-7099, 882 N.E.2d 46, ¶23.            The issue of
       reasonableness is an issue to be determined by the trier of fact. Id.

Merino I at ¶19-25.
       {¶34} This court noted in Merino I that the Ohio Administrative Code provides
that shooting ranges "should substantially comply with safety guidelines generally
recognized and accepted by the national rifle association (NRA). Suggested safety
guidelines are described or explained in great detail in 'The NRA Range Source
Book, Section I, Chapter 2, (1999 Edition).'" O.A.C. 1501:31-29-03(D). Id. at ¶ 32.
       {¶35} This court further explained that the violation of an administrative rule
may be admissible as evidence of negligence. Id. at ¶ 33. It noted that Clevenger,
Merino's expert, testified in his affidavit that the range backstops at Salem Hunting do
not comply with the requirements in the NRA Range Source Book because "they
consistently allow stray bullets to travel onto the Merino property, significantly
increasing the risk of substantial harm to persons and property. Clevenger further
stated in his affidavit that the bullets that either penetrated trees or came to rest on
the Merino property did so in a pattern that indicates that the bullets came from the
Club. Id. at ¶ 35. This court explained that while the NRA Range Source Book
requirements are not specific and detailed enough to establish negligence per se,
Clevenger's affidavit created a genuine issue of material fact regarding whether
Salem Hunting "breached its duty of care by failing to prevent bullets from escaping
from its property." Id. at ¶ 36.
       {¶36} When the case proceeded to a bench trial on remand in 2010, Merino
presented testimony from four witnesses, including his own testimony and expert
testimony from Clevenger and William Ullom from Vadose Environmental
                                                                                -16-

Consultants.
      {¶37} Clevenger testified that he owns a shooting range, which he built in
2004; he constructed his range according to the guidelines in the NRA Range Source
Book. He stated that the NRA Range Source Book recommended that backstops on
outdoor ranges should be at a minimum 15 to 20 feet high and should be "erected in
such a way to stop any rounds going off-property." He explained that he visited
Merino's property approximately two years ago and he observed that there were two
backstops that were not high enough to trap the rounds going off the range.
However, he also stated that, "[a]t the end of the property there was a huge mound,
probably forty, maybe forty-five feet high. * * * That would have stopped any rounds
going off-property." Clevenger testified that he did not know when the large mound
was constructed. He also explained that while he was on Merino's property, he did
not see any evidence of bullets going over the backstop.
      {¶38} On cross-examination, Clevenger testified that the intermediate mounds
that were not high enough were located in the direction of the last mound at the back
of the property such that the shooting took place in the direction of that mound. He
confirmed that even though the intermediate mounds were not high enough, the last
mound was high enough to catch any round that would have gone beyond the
intermediate mounds.
      {¶39} Clevenger confirmed that building the backstops is a "judgment call."
The court asked him whether he felt that Salem Hunting was negligent in its
construction of its backstops, and he responded that he could not say that Salem
Hunting was negligent.     The court also asked him whether the fact that the
intermediate mounds were not high enough was inconsequential because of the high
mound at the end of the property, and he replied that it was a difficult question to
answer because bullets can ricochet on impact. He explained that even though the
last mound was extremely high, it would not have trapped every round on the range
because a bullet could ricochet off of a shorter mound and travel over the high
mound. However, Clevenger acknowledged that even on his own range which has
high backstops, bullets can ricochet and land in his trees. He confirmed that he does
not consider himself negligent because of the occasional ricochet nor could he say
                                                                                    -17-

that Salem Hunting was negligent.
       {¶40} Upon review, I find that unlike his statements in his affidavit which
merely raised a genuine issue of material fact to survive summary judgment,
Clevenger's testimony at trial does not provide any evidentiary support for Merino's
qualified nuisance claim. As the trial court noted, Clevenger could not say that Salem
Hunting was negligent in its construction of the backstops nor could he say that it was
negligent because of the possibility of bullet ricochet.      Further, Clevenger's trial
testimony does not support the conclusion that Salem Hunting failed to substantially
comply with the safety guidelines in the NRA Range Source Book. Although he
testified that the intermediate backstops were not high enough to stop rounds from
leaving the range, he testified that the high mound at the end of the property was
high enough to stop any rounds from exiting the range, including those that the
intermediate backstops would not stop.
       {¶41} This court correctly relied on Clevenger's affidavit to determine that a
genuine issue of material fact existed as to whether Salem Hunting breached its duty
of care in the first appeal. However, Merino failed to present evidence at trial that the
backstops were inadequate to protect adjacent property owners. In fact, Clevenger's
testimony at trial was to the contrary, that the backstop along the back of the property
was high enough.
       {¶42} Merino also argues that Ullom's testimony regarding lead contamination
on his property shows that bullets from Salem Hunting were traveling onto his
property.   Merino hired Ullom, an environmental consultant, to evaluate Merino's
property for lead contamination in 2003. Ullom's firm tested soil and stream water
samples from Merino's property. The results showed soil samples containing lead in
concentrations exceeding the levels of lead hazardous to human health as defined in
the Ohio Revised Code. Ullom explained that typically the highest concentration of
contamination on a property occurs near the source of the contamination. On the
Merino property, the highest concentration of lead in the soil was located adjacent to
Salem Hunting's property. In addition, the stream water samples showed the highest
lead concentration in the samples taken near the area where the highest soil lead
concentrations were found.
                                                                                 -18-

       {¶43} Ullom also confirmed that he was hired to perform the evaluation of the
lead content on the property, not to determine the cause of the contamination. On
cross-examination, Ullom explained that the lead contamination likely took years to
reach the current level of contamination, but he did not have any data to determine
how fast lead was applied to the property.
       {¶44} While Ullom testified regarding the levels of lead contamination on
Merino's property, he did not state an opinion that the contamination was due to
bullets from Salem Hunting landing on Merino's property. Although Ullom's testimony
that the lead concentration was highest near the Salem Hunting property line could
support an inference that the lead contamination resulted from stray bullets from the
Club, the trial court, as the trier of fact, did not make this inference. Since Ullom
stated that he was not hired to determine causation, it was within the trial court's
discretion, again, as the trier of fact, to conclude that Ullom's testimony was not
evidence that Salem Hunting failed to exercise due care.
       {¶45} Merino further contends that his own testimony is evidence of Salem
Hunting's negligence.   He described an incident where a horse was shot on his
property approximately 25 years ago, and Salem Hunting paid for the veterinarian
bills. He claimed that over the years, there has been an increase in shooting. He
stated that he can hear the shooting and can hear the bullets ricochet through the
trees on his property. He said that he has been in his woods and pellets have rained
down on him from the skeet range. The last time he saw a bullet on his property was
about six months ago; he was at the back of his property and a bullet flew through
the trees.
       {¶46} Merino identified his Exhibit 1 as a photograph he took of the shooting
range from his property. He claimed that Salem Hunting had recently built up their
backstop and it was approximately ten feet high in the photograph. Merino also
introduced photographs that he took of Salem Hunting's no trespassing signs located
on their property line. He explained that the signs contained bullet holes created by
bullets going in the direction of his property. Next, he showed photographs of bullet
marks in his trees located ten feet from his property line, which he stated were taken
around August 2001. He also explained that he has found bullets in his trees using a
                                                                                      -19-

metal detector, and he introduced a photograph of a bullet imbedded in a tree that
was cut down. He explained that five to six ring growths surrounded the bullet.
       {¶47} On cross-examination, Merino testified that Salem Hunting built up their
backstop since he took the photograph marked as Exhibit 1 in August of 2001 or
2002. He admitted that he has not taken photographs of bullet holes since the ones
he took in 2001.
       {¶48} While Merino did testify that he observed bullets landing on his
property, Clevenger testified that some bullets could escape the range due to
ricochet, but he could not say that Salem Hunting was negligent.            Furthermore,
Merino's testimony is vague in general.       His exhibits showing evidence of bullet
marks in his trees were taken in 2001, and he did not have any current pictures
showing bullets on his land. While he testified that Salem Hunting had recently
increased the height of their backstop, his photograph showing the backstop, Exhibit
1, was taken in 2001 or 2002. It is unclear when Salem Hunting raised their backstop
to comply with the NRA Source Book, and, pertinent to this appeal, whether Salem
Hunting raised the backstop before or after Merino initiated this matter. The trial
court, as the trier of fact, was in a better position to view Merino's testimony, judge
his credibility, and weigh the evidence. Thus, the trial court did not err in determining
that this testimony was not evidence of negligence.
       {¶49} The majority concludes that the fact that Merino survived summary
judgment and attempted to present the same evidence at the bench trial via
Clevenger's testimony is proof that Merino's claims are not frivolous. I do not agree.
The majority cites to Wrinch, where the Ninth District found that "[a]lthough not
determinative, the fact that summary judgment was denied demonstrates that Wrinch
provided at least some factual basis to support the claims." Id. at ¶ 55. While in
many cases survival of a summary judgment motion may demonstrate that the
plaintiff's claims have some factual basis as the case proceeds past summary
judgment, the facts and procedural posture of this case warrant a different result.
       {¶50} On remand, this case proceeded as a bench trial, with the judge serving
as the trier of fact. After the close of Merino's case in chief, the trial court granted a
directed verdict in favor of Salem Hunting. The majority correctly notes that the trial
                                                                                    -20-

court's decision to grant a directed verdict is not itself determinative of the issue of
frivolous conduct. However, the fact that the trial court granted a directed verdict is
still a factor to consider when determining whether the trial court abused its discretion
in finding Merino's conduct on remand and the manner in which he prepared for and
presented his case at trial was frivolous.         See Baker v. Beachwood Villas
Condominium Owners Ass'n, 6th Dist. No. E-03-011, 2004-Ohio-682, ¶ 23 (trial
court's denial of a directed verdict after appellant's case-in-chief is arguably a
determination that appellant's claim was not frivolous). The trial court did not resolve
this case after considering the credibility and weight of competing evidence from both
parties. The case was resolved by determining that Merino wholly failed as a matter
of law to present evidence on issues such as causation and whether Salem Hunting
failed to exercise due care.
       {¶51} Having survived summary judgment, it was incumbent upon Merino to
prepare his case to sustain his burden of proof. The evidence that was presented at
the bench trial must be put in context: Merino originally filed the action in 2003 and
refiled it in 2005; after this court remanded the case in 2008, the matter proceeded to
a bench trial in 2010. Merino's testimony was vague, and the photographic evidence
he submitted was from 2001; as the trier of fact, the trial court could give this vague
and stale evidence little or no weight.
       {¶52} We held in the first appeal that Clevenger's affidavit, which stated that
Salem Hunting's backstop was not high enough, was sufficient to establish a genuine
issue of material fact regarding negligence for summary judgment purposes.
Conversely, at trial, Clevenger testified that the approximately 40 foot high backstop
along the back of the property in his opinion was high enough; he could not say that
Salem Hunting was negligent. The NRA Range Source Book introduced at trial,
suggested backstops should be at least 15-20 feet high. Thus, Merino presented no
evidence at trial regarding whether or not Salem Hunting breached its duty of care.
       {¶53} Ullom testified at trial that there was lead contamination on Merino's
property, that it accumulated over a period of years, and that it was higher near the
shooting range. But he was not asked by Merino to assess the cause of the lead
contamination, and presented no testimony as to whether the contamination was
                                                                                   -21-

caused by stray bullets from Salem Hunting, either in whole or in part. Thus, Merino
failed to present any evidence of causation at trial.
         {¶54} For these reasons, I cannot say that the trial court's determination that
Merino's conduct was frivolous was unreasonable. I would affirm this assignment of
error.
         {¶55} Accordingly, I dissent with respect to both assignments of error. The
trial court erred in awarding attorney fees incurred in the original action and I would
reverse and vacate that award. However, the trial court did not abuse its discretion in
determining that Merino failed to support his claims at the bench trial and I would
affirm the trial court's award of attorney fees for that frivolous conduct.
