Miller v. Miller ( 2012 )


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  • [Cite as Miller v. Miller, 
    2012-Ohio-2905
    .]
    COURT OF APPEALS
    HOLMES COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    PAUL W. MILLER, ET AL.                             JUDGES:
    Hon. Patricia A. Delaney, P.J.
    Plaintiff-Appellees                        Hon. William B. Hoffman, J.
    Hon. Julie A. Edwards, J.
    -vs-
    Case No. 11CA020
    ATLEE J. MILLER, ET AL.
    Defendant-Appellants                       OPINION
    CHARACTER OF PROCEEDING:                       Appeal from the Holmes County Court of
    Common Pleas Court, Case No. 09CV094
    JUDGMENT:                                      Affirmed
    DATE OF JUDGMENT ENTRY:                         June 26, 2012
    APPEARANCES:
    For Plaintiff-Appellees                        For Defendant-Appellants
    GRANT A. MASON                                 CRAIG T. CONLEY
    CHRISTINA I. SMITH                             604 Huntington Plaza
    Miller, Mast, Mason & Bowling Ltd.             220 Market Avenue South
    The Lincoln Bulding                            Canton, Ohio 44702
    88 S. Monroe Street
    Millersburg, Ohio 44654
    Holmes County, Case No. 11CA020                                                         2
    Hoffman, J.
    {¶1}    Defendants-appellants Atlee J. Miller, et al. appeal the November 2, 2011
    Judgment Entry entered by the Holmes County Court of Common Pleas, which denied
    their motion for frivolous conduct sanctions against plaintiffs-appellees Paul W. Miller,
    Kimberly Miller, and Miller, Mast, Mason & Bowling, Ltd.
    STATEMENT OF THE FACTS AND CASE
    {¶2}    The instant appeal surrounds a line fence/tree line (hereinafter “disputed
    line”) which separates the properties owned by the parties herein.      Appellants Atlee
    Miller, Viola Miller, and James Miller are the current owners of the property located on
    the north side of the disputed line. Appellants Atlee and Viola Miller acquired their
    property in 1966. Appellant James Miller acquired a life interest in the property in 1996.
    Appellees Paul and Kimberly Miller own the parcel of property located on the south side
    of the disputed line. In January, 2001, Appellees acquired their property which had
    been owned by Appellee Paul Miller’s parents, Raymond and Esther Miller, since 1974.
    {¶3}    On June 9, 2009, after a land survey included the disputed line in the legal
    description of Appellants’ property, Appellees Paul and Kimberly Miller brought the
    instant action asserting ownership of the disputed line under the legal theories of
    adverse possession and acquiescence. Appellee Miller, Mast, Mason & Bowling, Ltd.
    served as legal counsel for Appellees Miller throughout the trial proceedings.
    {¶4}    The trial court conducted a preliminary injunction hearing on June 29,
    2009. Testimony at the hearing revealed the disputed line has been in place since
    1952. In an affidavit presented to the court, Raymond Miller averred the disputed line
    had not changed since 1974, when he purchased the property. Raymond Miller also
    Holmes County, Case No. 11CA020                                                        3
    stated Appellant Atlee Miller and his sons maintained the disputed line, and both
    neighbors farmed as close as possible to the disputed line without going over it. The
    trial court granted preliminary injunction to Appellees via Judgment Entry filed July 6,
    2009. Thereafter, Appellants filed an answer and counterclaim. The matter proceeded
    through an extensive discovery process.
    {¶5}    Appellants filed a motion for summary judgment on February 23, 2011.
    On April 4, 2011, Appellees voluntarily dismissed without prejudice their adverse
    possession claim. Appellants filed an Amended Motion for Summary Judgment and/or
    Motion for Judgment on the Pleadings. Via Journal Entry filed May 5, 2011, the trial
    court denied Appellants’ motion for summary judgment, finding there were definite
    factual issues which needed to be litigated. The matter proceeded to jury trial on June
    13, 2011. On the day of trial, Appellants voluntarily dismissed without prejudice their
    counterclaim. After hearing all the evidence and deliberating, the jury found in favor of
    Appellants.
    {¶6}    Appellant filed a motion for frivolous conduct sanctions on June 18, 2011,
    which the trial court denied via Judgment Entry filed November 2, 2011. It is from this
    judgment entry Appellants appeal, assigning as error:
    {¶7}    “I.   THE    TRIAL     COURT         ERRED    IN    ITS    DENIAL      OF
    DEFENDANT’S/APPELLANTS’ MOTION FOR FRIVOLOUS CONDUCT SANCTIONS.”
    I
    {¶8}    Herein, Appellants challenge the trial court’s conclusion Appellees “had
    filed a good faith complaint.” Appellants submit such finding was erroneous as the
    Complaint was predicated upon material falsehoods and false testimony.
    Holmes County, Case No. 11CA020                                                             4
    {¶9}    R.C. 2323.51 provides a court may award court costs, reasonable attorney
    fees, and other reasonable expenses incurred in connection with the civil action or
    appeal to any party to the civil action or appeal who was adversely affected by frivolous
    conduct. R.C. 2323.51(A)(2)(a) defines “frivolous conduct” as follows:
    {¶10} “(i) * * * [conduct that] serves merely to harass or maliciously injure
    another party to the civil action or appeal or is for another improper purpose, including,
    but not limited to, causing unnecessary delay or a needless increase in the cost of
    litigation.
    {¶11} “(ii) * * * [conduct that] is not warranted under existing law and cannot be
    supported by a good faith argument for an extension, modification, or reversal of
    existing law.
    {¶12} “(iii) * * * [conduct that] consists of allegations or other factual contentions
    that have no evidentiary support or, if specifically identified, are not likely to have
    evidentiary support after a reasonable opportunity for further investigation or discovery.”
    {¶13} A motion for sanctions brought under R.C. 2323.51 requires a three-step
    analysis by the trial court. The trial court must determine (1) whether the party engaged
    in frivolous conduct, (2) if the conduct was frivolous, whether any party was adversely
    affected by it and (3) if an award is to be made, the amount of the award. R.C.
    2323.51(B)(2)(a). The question of what constitutes frivolous conduct may be either a
    factual determination, or a legal determination. Pingue v. Pingue, Delaware App. No.
    06-CAE-10-0077, 
    2007-Ohio-4818
    , ¶ 20 citing Wiltberger v. Davis (1996), 
    110 Ohio App.3d 46
    , 
    673 N.E.2d 628
    . A determination that the conduct is not warranted under
    existing law and cannot be supported by a good faith argument for an extension,
    Holmes County, Case No. 11CA020                                                             5
    modification, or reversal of existing law requires a legal analysis. Lable & Co. v. Flowers
    (1995), 
    104 Ohio App.3d 227
    , 233, 
    661 N.E.2d 782
    . With respect to purely legal issues,
    we follow a de novo standard of review and need not defer to the judgment of the trial
    court. Wiltberger, supra, at 51-52, 
    673 N.E.2d 628
    . However, we do find some degree of
    deference appropriate in reviewing a trial court's factual determinations and will not
    disturb such factual determinations where the record contains competent, credible
    evidence to support such findings. 
    Id.
    {¶14} In determining whether conduct is frivolous, the courts must be careful to
    apply the statute so that legitimate claims are not chilled. Beaver Excavating Co. v.
    Perry Twp. (1992), 
    79 Ohio App.3d 148
    , 
    606 N.E.2d 1067
    . The statute was designed to
    chill egregious, overzealous, unjustifiable and frivolous action. Oakley v. Nolan, Athens
    App. No. 06CA36, 
    2007-Ohio-4794
    , ¶ 16 citing Turowski v. Johnson (1990), 
    68 Ohio App.3d 704
    , 706, 
    589 N.E.2d 462
    . “Whether a claim is warranted under existing law is
    an objective consideration. The test * * * is whether no reasonable lawyer would have
    brought the action in light of the existing law. In other words, a claim is frivolous if it is
    absolutely clear under the existing law that no reasonable lawyer could argue the
    claim.” Pingue, supra, citing Riston v. Butler, 
    149 Ohio App.3d 390
    , 
    777 N.E.2d 857
    ,
    
    2002-Ohio-2308
    , at ¶ 30, quoting Hickman v. Murray (Mar. 22, 1996), Montgomery App.
    No. 15030 (citations omitted).
    {¶15} In their Complaint, Appellees claimed the right to the disputed line under
    the law of acquiescence.
    {¶16} “ * * * The doctrine of acquiescence is applied in instances when adjoining
    land owners occupy their respective properties up to a certain line and mutually
    Holmes County, Case No. 11CA020                                                          6
    recognize and treat that line as if it is the boundary that separates their properties. See
    Robinson v. Armstrong, Guernsey App. No. 03CA12, 2004–Ohio–1463, at ¶ 35;
    McConachie v. Meeks (Sep. 21, 1999), Richland App. No. 98CA90; Turpen v. O'Dell
    (Oct. 14, 1998), Washington App. No. 97CA2300. Acquiescence rests on the practical
    reality that oftentimes, the true boundary line location is uncertain and neighbors may
    themselves establish boundaries. Richardson v. Winegardner (Nov. 2, 1999), Allen App.
    No. 1–99–56. To apply this doctrine: (1) adjoining landowners must treat a specific line
    as the boundary; and (2) the line must be so treated for a period of years, usually the
    period required for adverse possession. Robinson, supra at ¶ 35; Matheson v. Morog
    (Feb. 2, 2001), Erie App. No. E–00–17; McGregor v. Hanson (Jun. 16, 2000), Geauga
    App. No. 99–G–2228.” Burkitt v. Shepherd, Pike App. No. 05CA754, 2006–Ohio–3673,
    at ¶ 15.
    {¶17} On Verdict Form No. 1, the jury answered the following interrogatory in the
    negative: “Do you find by clear and convincing evidence that [Appellees] and their
    predecessors and [Appellants] and their predecessors established the fence line/tree
    line as the boundary between the two properties?”1 We find the fact the jury did not find
    there was clear and convincing evidence the parties had established the disputed line
    as the boundary between their properties does not automatically necessitate a finding
    Appellees’ action in bringing the suit was frivolous.     Appellees presented evidence
    which, if believed, supported their claim. The jury merely found Appellees’ evidence did
    not rise to the level of clear and convincing.
    1
    On the verdict form, the words “property line” are handwritten between the words “the”
    and “boundary”.
    Holmes County, Case No. 11CA020                                                        7
    {¶18} R.C. 2323.51 does not purport to punish a party for raising an
    unsuccessful claim. Rather, it addresses conduct that serves to harass or maliciously
    injure the opposing party in a civil action or is unwarranted under existing law and for
    which no good faith argument for extension, modification, or reversal of existing law
    may be maintained. Independent Taxicab Assoc. of Columbus, Inc. v. Abate, Franklin
    App. No. 08AP-44, 
    2008-Ohio-4070
    , ¶ 22; Ferron v. Video Professor, Inc., Delaware
    App. No. 08-CAE-09-0055, 
    2009-Ohio-3133
    , ¶ 44. We find the record before us is
    devoid of any evidence Appellees’ conduct was meant to harass or maliciously injure
    Appellants or was unwarranted under existing law.        The fact Appellees may have
    offered contradictory or inconsistent evidence regarding their use of their property does
    not necessarily equate or mandate a finding of frivolous conduct.        After reviewing
    Appellants’ arguments based upon the Exhibits presented at trial and the testimonial
    evidence as to the actual use of the disputed property we do not find the trial court
    abused its discretion in denying Appellants’ motion for sanctions.
    {¶19} Appellants’ sole assignment of error is overruled.
    {¶20} The judgment of the Holmes County Court of Common Pleas is affirmed.
    By: Hoffman, J.
    Delaney, P.J. and
    Edwards, J. concur                          s/ William B. Hoffman _________________
    HON. WILLIAM B. HOFFMAN
    s/ Patricia A. Delaney _________________
    HON. PATRICIA A. DELANEY
    s/ Julie A. Edwards___________________
    HON. JULIE A. EDWARDS
    Holmes County, Case No. 11CA020                                                 8
    IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    PAUL W. MILLER, ET AL.                   :
    :
    Plaintiff-Appellees               :
    :
    -vs-                                     :         JUDGMENT ENTRY
    :
    ATLEE J. MILLER, ET AL.                  :
    :
    Defendant-Appellants              :         Case No. 11CA020
    For the reasons stated in our accompanying Opinion, The judgment of the
    Holmes County Court of Common Pleas is affirmed. Costs to Appellants.
    s/ William B. Hoffman _________________
    HON. WILLIAM B. HOFFMAN
    s/ Patricia A. Delaney _________________
    HON. PATRICIA A. DELANEY
    s/ Julie A. Edwards___________________
    HON. JULIE A. EDWARDS
    

Document Info

Docket Number: 11CA020

Judges: Hoffman

Filed Date: 6/26/2012

Precedential Status: Precedential

Modified Date: 10/30/2014