State Ex Rel. Bell v. Madison County Board of Commissioners

[Cite as State ex rel. Bell v. Madison Cty. Bd. of Commrs., 139 Ohio St.3d 106, 2014-Ohio-

1564.]

THE STATE EX REL. BELL ET AL., APPELLANTS, v. MADISON COUNTY

BOARD OF COMMISSIONERS, APPELLEE, ET AL.

[Cite as State ex rel. Bell v. Madison Cty. Bd. of Commrs.,

139 Ohio St.3d 106, 2014-Ohio-1564.]

R.C. 2323.51—Judgment awarding sanctions for frivolous conduct affirmed.

(No. 2013-0633—Submitted February 4, 2014—Decided April 16, 2014.)

APPEAL from the Court of Appeals for Madison County, No. CA2010-04-010.

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Per Curiam.

{¶ 1} We affirm the judgment of the Madison County Court of Appeals

sanctioning appellants, Greg Bell and his attorney, Philip Wayne Cramer, for

frivolous conduct. The sanctions are in relation to an action for a writ of

mandamus that Bell, through Cramer, filed in the court of appeals, requesting that

the court order appellee, the Madison County Board of Commissioners, to comply

with R.C. 163.01 and 163.02, to provide him with due process in the taking of his

real-property rights and to comply with a consent agreement. The court of

appeals dismissed that petition, and we affirmed. State ex rel. Bell v. Madison

Cty. Bd. of Commrs., 128 Ohio St.3d 357, 2011-Ohio-527, 944 N.E.2d 659.

{¶ 2} Thereafter, the court of appeals ruled on a motion for sanctions

filed by the board. The court granted the motion for sanctions in the amount of

$21,137.19 against Bell and his attorney, Cramer.

{¶ 3} Bell and Cramer timely appealed the sanctions judgment to this

court. The only issue before us is whether the court of appeals abused its

discretion in granting the motion for sanctions. Because the underlying case was

the last in a series of legal actions covering the same ground, and because the

board provided sufficient evidence to support the fees that were awarded, the

court of appeals did not abuse its discretion, and so we affirm.

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Facts

{¶ 4} Appellants, Cramer and Bell, have been counsel and party in

numerous court proceedings originating from a 2003 appropriation action filed by

the board against Bell and his wife to acquire a sewer easement on Bell’s

property. In that case, Bell and his wife challenged the appropriation pro se, and

the Madison County Court of Common Pleas held that the board was entitled to

an easement. Madison Cty. Bd. of Commrs. v. Bell, Madison C.P. No. 2003CV-

02-71 (Aug. 29, 2005). That judgment was affirmed on appeal. 12th Dist.

Madison No. CA2005-09-036, 2007-Ohio-1373. We declined to accept a

discretionary appeal from that judgment. 114 Ohio St.3d 1512, 2007-Ohio-4285,

872 N.E.2d 953.

{¶ 5} In April 2008, Bell, through Cramer, filed a complaint in the

Franklin County Court of Common Pleas naming numerous defendants and

asserting various causes of action related to the Madison County appropriation

case. As later observed by the Twelfth District Court of Appeals in the decision

now on appeal, the Franklin County Court of Common Pleas dismissed the case

based on res judicata, finding that the claims were “ ‘a repackaging of the issues

[that were] addressed or that could have been addressed in the Madison County

Court of Common Pleas and the Twelfth District Court of Appeals’ ” and noting

that “ ‘the Bells admit that they are collaterally attacking the judgment rendered

against them.’ ” (Emphasis sic.) 12th Dist. Madison No. CA2010-04-010, 4

(Sept. 10, 2012), quoting Bell v. Nichols, Franklin C.P. No. 2008 CVA 6427, 15

(Apr. 3, 2009).

{¶ 6} The Franklin County Court of Appeals affirmed. 10th Dist.

Franklin No. 9AP-438, 2009-Ohio-4851. Some of the defendants in the Franklin

County case filed a joint motion for sanctions against the Bells and Cramer,

arguing that the case was frivolous under R.C. 2323.51. Sanctions were assessed

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against the Bells and Cramer, jointly and severally. Franklin C.P. No. 2008 CVA

6427 (Oct. 5, 2010).

{¶ 7} On April 13, 2010, Bell, again represented by Cramer, filed the

underlying mandamus case in the Madison County Court of Appeals. The court

of appeals dismissed the complaint, finding that Bell had “extensively litigated, or

at least had the opportunity to litigate, all of the claims and issues for which he is

seeking mandamus.” 12th Dist. Madison No. CA2010-04-010 (July 14, 2010).

We affirmed. 128 Ohio St.3d 357, 2011-Ohio-527, 944 N.E.2d 659.

{¶ 8} The board filed a motion for sanctions under R.C. 2323.51 against

Bell and Cramer in the mandamus case. A magistrate was assigned, conducted a

hearing, and eventually filed a decision granting the board attorney fees of

$21,137.19. The magistrate decided that the mandamus action was frivolous

because the issues raised had been litigated in other cases and mandamus was not

available under existing law and no good-faith argument could be made for

extending, modifying, or reversing existing law. The magistrate determined that

the board had been adversely affected by the frivolous conduct in that it had had

to expend resources in hiring outside counsel to litigate the mandamus case. The

magistrate also rejected Bell and Cramer’s argument that because the magistrate

had denied their request for discovery prior to the sanctions hearing, they had

been denied due process. The magistrate reiterated his earlier determination that

the discovery sought by Bell and Cramer would not have aided in the

determinations necessary for him to rule on the motion for sanctions. Finally, the

magistrate determined that the hourly rate of $150 for the board’s attorney was

reasonable, and he awarded attorney fees in the amount of $21,137.19. The court

of appeals denied Bell and Cramer’s objections to the magistrate’s decision and

adopted the decision.

{¶ 9} Bell and Cramer appealed to this court. After mediation was

unsuccessful, the case was returned to the regular docket, and the board filed a

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motion to dismiss the appeal. We denied the motion on September 25, 2013. A

motion to supplement the record with the exhibits that were presented at the

hearing on sanctions was granted shortly thereafter.

Legal Analysis

{¶ 10} On appeal, we will not reverse a lower court’s decision on whether

to award sanctions under R.C. 2323.51 absent a showing of an abuse of

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

957 N.E.2d 19, ¶ 11. To prove such an abuse, Bell and Cramer must establish

that the court of appeals’ award of attorney fees was “unreasonable, arbitrary or

unconscionable.” Id.

{¶ 11} Bell and Cramer have engaged in repetitive litigation about a sewer

easement on Bell’s property in Madison County. The underlying mandamus case

is the latest attempt to argue issues that were long ago litigated to finality. On the

merits, the underlying case was properly dismissed on the basis of res judicata, a

decision affirmed by this court. The only question at this point is whether the

court of appeals abused its discretion in awarding the board sanctions against Bell

and Cramer.

Sanctions were warranted

{¶ 12} Sanctions for frivolous conduct are authorized by R.C. 2323.51.

The first determination to be made in deciding whether sanctions are warranted

here is whether Bell and Cramer engaged in frivolous conduct. The definition of

“frivolous conduct” includes conduct by a party to a civil action that is “not

warranted under existing law, cannot be supported by a good faith argument for

an extension, modification, or reversal of existing law, or cannot be supported by

a good faith argument for the establishment of new law.” R.C.

2323.51(A)(2)(a)(ii). The court of appeals correctly held that given the history of

the litigation, “[m]andamus was simply not available under existing law, and the

petition cannot be supported by a good faith argument for an extension,

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modification or reversal of existing law.” 12th Dist. Madison No. CA2010-04-

010, 10 (Sept. 10, 2012). Bell and Cramer’s arguments that the previous litigation

was somehow improper or incomplete are without merit, as Bell had had his day

in court and the opportunity to litigate all issues related to the easement. Filing a

petition for a writ of mandamus was clearly improper here. Given Bell and

Cramer’s history of repetitive litigation relating to this matter, the court of appeals

did not abuse its discretion in finding that the filing of the petition was frivolous

conduct.

{¶ 13} Under R.C. 2323.51(B)(1), a court may award costs, reasonable

attorney fees, and other reasonable expenses incurred by a party adversely

affected by the frivolous conduct. The award may be against a party, the party’s

counsel, or both. R.C. 2323.51(B)(4). So the next determination to be made here

is whether the board was adversely affected by Bell and Cramer’s frivolous

conduct.

{¶ 14} The court of appeals found that the filing of the mandamus case

itself had caused adverse effects to the board, as the board was required to defend

against it. The board had hired Onda, LaBuhn, Rankin & Boggs Co., L.P.A.

(“OLRB”) to represent it, and at the hearing on sanctions, the board introduced

itemized invoices from the firm. Bell and Cramer questioned whether the board

had needed to hire the law firm. The court of appeals found that because Bell and

his wife had filed a third-party complaint against the prosecuting attorney in the

related appropriation case, it was reasonable for the board to hire outside counsel

rather than rely on representation from the prosecuting attorney.

{¶ 15} Bell and Cramer also assert that OLRB generated excessive fees by

litigating the mandamus case instead of trying to settle it. However, as the court

below held, the board was under no obligation to settle a frivolous lawsuit.

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{¶ 16} Thus, the court of appeals did not abuse its discretion in finding

that the board was entitled to sanctions against Bell and Cramer for engaging in

frivolous conduct that had caused the board to incur attorney fees.

Discovery was not necessary

{¶ 17} After the motion for sanctions was filed, Cramer orally requested

discovery to prepare in defending against the motion for sanctions. That request

was denied. At the hearing, Cramer made another motion for discovery. The

motion was denied because the discovery Bell and Cramer sought would not have

answered any of the pertinent questions: Was the mandamus action frivolous?

Was the board adversely affected? What fees were incurred?

{¶ 18} The court of appeals did not deny Bell and Cramer their due-

process rights in denying the motion for discovery. OLRB engaged in and

completed legal work in connection with the mandamus case on behalf of the

board.

Amount of fees was reasonable

{¶ 19} Finally, the fees awarded by the court of appeals were reasonable.

Attorney Derek Graham of OLRB testified at the hearing that his firm charged

fees and expenses for defending the board against the mandamus action.

{¶ 20} The court reasonably concluded that Bell and Cramer were equally

responsible for bringing the frivolous mandamus action, because their testimony

at the hearing indicated that they both knew the prior history of the case and yet

decided to pursue a mandamus action in an attempt to relitigate the same issues.

The court found that they had “maintained a united front” and therefore were

jointly and severally liable. 12th Dist. Madison No. CA2010-04-010, 14 (Sept.

10, 2012). The history of the litigation supports this conclusion.

{¶ 21} The court also determined, based on Bittner v. Tri-County Toyota,

Inc., 58 Ohio St.3d 143, 145-146, 569 N.E.2d 464 (1991), that the starting point

for calculating fees is to multiply the number of hours reasonably expended by a

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reasonable hourly rate, taking into account the factors in Prof.Cond.R. 1.5(a)

(setting forth the factors to be considered in determining the reasonableness of a

fee). The court pointed out that Bell and Cramer did not object to the hourly rate

charged by OLRB or argue that particular items billed by OLRB were

unreasonable or unnecessary. The court found the hourly rate of $150 to be

reasonable. After reviewing the invoices, the court reduced the fees requested to

account for some services that appeared to be connected with other litigation and

arrived at a total of $21,137.19. The court of appeals thus applied the correct law

in determining whether the fees were reasonable. This decision was not arbitrary

or an abuse of discretion, and therefore we affirm the judgment.

Conclusion

{¶ 22} The court of appeals did not abuse its discretion in levying

sanctions in the form of attorney fees against Bell and Cramer because they had

engaged in frivolous conduct by attempting to relitigate matters that had already

been determined. Indeed, they had been sanctioned once before, by the Franklin

County Common Pleas Court, for litigating a case on the same matter. The

mandamus action was clearly frivolous and adversely affected the board by

causing it to incur attorney fees. The fees awarded are reasonable.

{¶ 23} In short, the court below did not abuse its discretion, and we

affirm.

Judgment affirmed.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and

O’NEILL, JJ., concur.

FRENCH, J., not participating.

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Philip Wayne Cramer, pro se, and for appellant Greg Bell.

Onda, LaBuhn, Rankin & Boggs Co., L.P.A., and Timothy S. Rankin, for

appellee.

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