Opinion
No. 107122
04-11-2019
Jeffrey GRIMES, Plaintiff-Appellee v. Richard A. OVIATT, et al., Defendants-Appellants
David G. Oakley, 55 Public Square, Suite 2100, Cleveland, OH 44113, ATTORNEY FOR APPELLANT. Thomas H. Terry, 418 Wilberry Circle, Avon Lake, OH 44012, For Jeffrey Grimes. Regis E. McGann, 14701 Detroit Ave., Suite 368, Lakewood, OH 44107, For Thomas Terry.
David G. Oakley, 55 Public Square, Suite 2100, Cleveland, OH 44113, ATTORNEY FOR APPELLANT.
Thomas H. Terry, 418 Wilberry Circle, Avon Lake, OH 44012, For Jeffrey Grimes.
Regis E. McGann, 14701 Detroit Ave., Suite 368, Lakewood, OH 44107, For Thomas Terry.
BEFORE: Sheehan, J., Kilbane, A.J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION
MICHELLE J. SHEEHAN, J.:
{¶1} Richard A. Oviatt, Esq., appeals from a judgment of the Cuyahoga County Court of Common Pleas denying his motion for sanctions relating to a 1984 tort case. Attorney Oviatt obtained a judgment in that case for his client in 1985 but was unable to execute the judgment then. Twenty-six years later, in 2012, Oviatt tried to revive the old judgment. That attempt led to two appeals before this court, and this is the third appeal relating to the case. For the following reasons, we affirm the judgment of the trial court.
Attorney Richard A. Oviatt passed away on December 31, 2018. The Estate of Richard Oviatt was substituted on March 18, 2019.
I. Procedural History
{¶2} A summary of the protracted and highly contentious litigation in this case is necessary to review the trial court's judgment denying Attorney Oviatt's motion for sanctions to collect on a dormant judgment he obtained for his client John Selwyn in a civil case in 1984.
a. The 1985 Judgment Obtained by Attorney Oviatt's Client
{¶3} In 1983, Jeffery Grimes allegedly smashed a beer bottle into John Selwyn's face. In 1984, Attorney Oviatt filed a civil lawsuit against Grimes on behalf of Selwyn. In June 1985, Selwyn obtained a default judgment ("the Selwyn judgment") of $ 50,000 in compensatory damages and $ 50,000 in punitive damages against Grimes. Months later, Attorney Oviatt attempted to execute the judgment but without success.
{¶4} Two years later, in 1987, Grimes filed for bankruptcy. Attorney Oviatt initiated an adversary action contesting the discharge of the Selwyn judgment. The bankruptcy court declared the Selwyn judgment nondischargeable.
b. The Motion to Revive the Judgment and Grimes I
{¶5} According to Attorney Oviatt, Grimes was "uncollectible" and, as a result, he and his client did not make any further attempt to collect on the judgment until 26 years later, when Grimes's father passed away in 2012. Hoping that Grimes may have inherited money from his father, Attorney Oviatt filed a motion on June 4, 2012 to revive the 1985 judgment. Days later, the trial court granted the motion to revive the judgment.
{¶6} A year passed before Attorney Oviatt executed the revived judgment. On June 18, 2013, he transferred the revived judgment to the Cleveland Municipal Court and implemented garnishment proceedings of Grimes's bank account, netting $ 3,000.
The one-year-late execution on the revived judgment later became a point of contention; Grimes's attorney alleged Attorney Oviatt deliberately waited until the one-year period until the time for filing of a Civ.R. 60(B) motion contesting the judgment had passed to execute the judgment.
{¶7} In response, Grimes filed a motion to vacate the trial court's order reviving the 1985 judgment. The trial court eventually determined that the motion to revive the judgment had not been properly served, vacated its order reviving the judgment, and directed Selwyn to refile the motion to revive the judgment.
{¶8} On January 16, 2014, Selwyn refiled the motion to revive. On March 14, 2014, the trial court granted that motion and ordered that the judgment be dated back to June 2012. This resulted in a judgment of $ 383,430, with interest. In granting the motion to revive, the trial court found the June 2012 motion to revive timely. It reasoned that Selwyn's adversary action in the bankrupt court constituted an "execution on the judgment" and, therefore, the 21-year statute of limitations for revival of a dormant judgment began to run from August 17, 1992, the date of the bankruptcy court's order finding the judgment nondischargeable.
{¶9} Grimes appealed the trial court's revival order to this court. In Selwyn v. Grimes , 8th Dist. Cuyahoga No. 101252, 2014-Ohio-5147, 2014 WL 6484272 (" Grimes I "), appeal not accepted , Selwyn v. Grimes , 142 Ohio St.3d 1477, 2015-Ohio-2104, 31 N.E.3d 655, this court determined Selwyn's adversary action in the bankruptcy court was not an attempt at execution, and therefore, the Selwyn judgment became dormant in August 19, 1990 (five years after Selwyn's attempt in 1985 to execute the judgment).
{¶10} Consequently, this court decided that Selwyn must seek revival of the judgment within 21 years of August 19, 1990, i.e., by August 19, 2011. Because Selwyn did not file the motion to revive until June 4, 2012, the motion was untimely and the trial court erred in reviving the judgment. Grimes I at ¶ 21.
This court in addition held that, because the June 2012 motion to revive the judgment was not served properly, Selwyn did not attempt to revive the judgment until he refiled the second motion to revive on January 16, 2014. This holding is one of the reasons Attorney Oviatt later filed a disciplinary complaint against the three-panel judges in Grimes I .
c. The Grimes Complaint against Attorney Oviatt and Oviatt's Motion for Sanctions
{¶11} After this court decided Grimes I , Grimes, through Attorney Thomas Terry, filed a complaint in July 2015 against Attorney Oviatt and Selwyn ("the Grimes' Complaint"). The complaint related to Oviatt and Selwyn's attempt to collect on the Selwyn judgment. It asserted four counts: malicious civil prosecution, third-party legal malpractice, intentional infliction of emotional distress, and a claim for punitive damages. Grimes alleged Attorney Oviatt and his client wrongfully initiated the proceeding to revive the Selwyn judgment knowing that the time to revive the judgment had passed and that there was no probable cause or reasonable basis for the filing of the motion to revive. Grimes also alleged the two "willfully harassed" him in seizing his bank accounts and wages, and he was forced to incur $ 12,290 in legal fees.
In answering the complaint, Attorney Oviatt made several disparaging statements about the panel in Grimes I , claiming the decision was a result of outside influence. Attorney Oviatt was subsequently sanctioned by the Supreme Court of Ohio for making the baseless allegations in violation of Prof.Cond.R. 8.2.(a). Disciplinary Counsel v. Oviatt , 2018-Ohio-5091, 122 N.E.3d 1246.
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{¶12} Oviatt moved to dismiss the Grimes complaint. He also moved to depose the three-panel judges in Grimes I . The trial court denied both motions. Grimes later amended his complaint to add an unjust enrichment claim to recover the money Selwyn had garnished from Grimes's bank account. Grimes eventually dismissed his complaint without prejudice on February 29, 2016.
d. Oviatt's Motion for Sanctions and Grimes II
{¶13} Subsequently, Attorney Oviatt moved for sanctions pursuant to Civ.R. 11 and R.C. 2323.51. After the issue was fully briefed, the trial court denied the motion without a hearing.
{¶14} Attorney Oviatt appealed from that decision. This court, in Grimes v. Oviatt , 8th Dist. Cuyahoga No. 104491, 2017-Ohio-1174, 2017 WL 1180858 (" Grimes II "), held that the trial court erred in summarily denying the motion for sanctions without an evidentiary hearing.
e. The Hearing on Remand from Grimes II
{¶15} On remand, the trial court held a hearing on the motion for sanctions. The issue before the trial court was: whether Attorney Terry's filing of the Grimes complaint was frivolous under either Civ.R. 11 or R.C. 2323.51. After the hearing, the trial court denied Oviatt's motion for sanctions. Oviatt now appeals.
II. Assignments of Error
{¶16} Oviatt now appeals, presenting ten assignments of error:
I. Whether the trial court can ignore and disregard the law of the case as set forth by the Eighth District Court of Appeals that there was frivolous conduct.
II. Whether the trial court can disregard and ignore that Grimes's lawsuit set forth a claim for an improper purpose in direct violation of R.C. 2323.51(A)(2)(a)(i).
III. Whether the trial court can disregard and ignore that Grimes's lawsuit set forth facts for malicious prosecution and other claims when such claims were not warranted under existing law, cannot be supported by a good faith argument for an extension, modification or reversal of existing law, cannot be supported by a good faith argument for the establishment of new law and as required by R.C. 2323.51(A) (2(a)(ii).
IV. Whether the trial court can disregard and ignore that Grimes's lawsuit consists of allegations or other factual contentions that have no evidentiary [sic] support or, if specifically so identified, are not likely to have evidentiary [sic] support after a reasonable opportunity for further investigation or discovery as required by R.C. 2323.51(A)(2)(a)(iii).
V. Whether the trial court can disregard and ignore that Grimes's lawsuit consists of factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on [a] lack of information or belief as required by R.C. 2323.51(A)(2)(a)(iv).
VI. Whether the trial court can disregard and ignore that Grimes's lawsuit does not have good ground to support it as required by Civil Rule 11.
VII. Whether the trial court committed prejudicial error by not awarding sanctions when there is clearly frivolous conduct.
VIII. Whether the trial court committed prejudicial error in not awarding sanctions as and for [sic] attorney fees to counsel Oakley, when representing appellant in his claim for sanctions.
IX. Whether the trial court committed prejudicial error by not awarding sanctions as and for [sic] attorney fees when appellant attorney Oviatt represented Selwyn in these proceedings.
X. Whether Judge Friedland should have recused herself for the hearing on sanctions when she had previously ruled that sanctions would not be allowed.
{¶17} For clarity of analysis, we combine some of Oviatt's assignments of error and address some of them out of turn where appropriate.
III. Applicable Law and Standard of Review
{¶18} The issue in this appeal is whether Attorney Terry's filing of the Grimes complaint was frivolous and subject to sanctions. More specifically, whether Attorney Terry's conduct was frivolous under R.C. 2323.51. That statute authorizes a trial court to award attorney fees to a party adversely affected by frivolous conduct in a civil action. "Frivolous conduct" is defined by the statute as follows:
(i) It obviously 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.
(ii) It 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.
(iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(iv) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief.
R.C. 2323.51(A)(2)(a)(i)-(iv).
{¶19} The court applies an objective standard in determining frivolous conduct. In other words, the finding of frivolous conduct under the statute is determined without reference to what the individual knew or believed. Grimes II at ¶ 25.
{¶20} The decision to deny or grant sanctions under R.C. 2323.51 rests with the sound discretion of the trial court and a reviewing court will not reverse a trial court's decision absent an abuse of discretion. Id. at ¶ 27. See also Riston v. Butler , 149 Ohio App.3d 390, 397-398, 2002-Ohio-2308, 777 N.E.2d 857 (1st Dist.) (the ultimate decision whether to impose sanctions for frivolous conduct remains wholly within the trial court's discretion).
IV. Whether the Filing of the Grimes Complaint Was Frivolous
{¶21} Under the second, third, fourth, and fifth assignments of error, Oviatt argues Attorney Terry was frivolous in filing the Grimes complaint, as the term is defined in R.C. 2323.51(A)(2)(a)(i) to (iv), respectively.
a. Whether the Grimes Complaint was Filed for an Improper Purpose Under R.C. 2323.51(A)(2)(a)(i)
{¶22} Under the second assignment of error, Oviatt asserts the Grimes complaint was filed for an improper purpose in violation of R.C. 2323.51(A)(2)(a)(i) and the trial court erred in finding otherwise.
{¶23} The Grimes complaint asserted malicious civil prosecution and third-party legal malpractice by Attorney Oviatt regarding his attempt to revive the Selwyn judgment after the 21-year period of time for a revival had expired. To establish a claim of malicious civil prosecution, a plaintiff must establish that "prior proceedings were initiated or continued with malice and without probable cause, the prior proceedings ended in the injured party's favor, and a seizure of the injured party or his property during the prior proceedings has occurred." Fourtounis v. Verginis , 2017-Ohio-8577, 101 N.E.3d 101, ¶ 20 (8th Dist.), citing Foley v. Univ. of Dayton , 150 Ohio St.3d 252, 2016-Ohio-7591, 81 N.E.3d 398, ¶ 14.
{¶24} Regarding the third-party legal malpractice claim, "an attorney may not be held liable by third parties as a result of having performed services on behalf of a client, in good faith, unless the third party is in privity with the client for whom the legal services were performed, or unless the attorney acts with malice." Simon v. Zipperstein , 32 Ohio St.3d 74, 76, 512 N.E.2d 636 (1987).
{¶25} In seeking sanctions, Oviatt argued Attorney Terry asserted those claims to "maliciously hurt and humiliate" him. Oviatt alleged the Grimes complaint was part of an agenda to get Oviatt's own client Selwyn to file a legal malpractice suit against Oviatt.
{¶26} At the hearing on remand, Attorney Terry acknowledged the Grimes complaint was filed to get Selwyn to sue his attorney Oviatt for malpractice, in the hope that Oviatt had malpractice coverage and Selwyn would pay Grimes out of the eventual malpractice proceeds for the attorney fees Grimes incurred in defending against Oviatt's aggressive collection efforts. In other words, Attorney Terry acknowledged the Grimes complaint was filed as an attempt to recover the attorney fees for his client Grimes. In its decision denying the motion for sanctions, the trial court stated it was not convinced that no reasonable attorneys would have brought this action in light of the unique facts of this case. We agree.
{¶27} There is a "delicate balance between protecting the adversary and not allowing attorneys to exploit the system for their own purpose." Richmond Glass & Aluminum Corp. v. Wynn , 7th Dist. Columbiana No. 90-C-46, 1991 WL 172902, *2 (Sept. 5, 1991). We are also mindful that, in determining whether the filing of an action "obviously serves merely to harass or maliciously injure another party," i.e., for an improper purpose under R.C. 2323.51(A)(2)(a)(i), the trial judge has "the benefit of observing the entire course of proceedings and will be most familiar with the parties and attorneys involved," and, consequently, a finding of whether certain conduct was engaged in to harass or injure another party is entitled to substantial deference by a reviewing court. Lable & Co. v. Flowers , 104 Ohio App.3d 227, 233, 661 N.E.2d 782 (9th Dist.1995).
{¶28} Here, both parties took aggressive measures in pursuing and defending against this by now three-decades-old judgment. Given the protracted history of the highly contentious litigation engaged in by both parties, we cannot say that the trial court abused its discretion in finding the Grimes complaint could have been brought by a reasonable attorney to recoup the attorney fees incurred by his client and the complaint was not brought for an improper purpose. The second assignment of error is overruled.
b. Whether the Grimes Complaint Was Not Warranted Under Existing Law or Lacked Evidentiary Support Under R.C. 2323.51(A)(2)(a)(ii)-(iv)
{¶29} Under the third, fourth, and fifth assignments of error, Oviatt contends the trial court erred in not finding the filing of the Grimes complaint frivolous under R.C. 2323.51(A)(2)(a)(ii) ("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"), R.C. 2323.51(A)(2)(a)(iii) (consists of factual contentions without evidentiary support), or R.C. 2323.51(A)(2)(a)(iv) (consists of factual contentions not warranted by the evidence).
{¶30} Regarding R.C. 2323.51(A)(2)(a)(ii),
"[w]hether 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."
Riston, 149 Ohio App.3d 390, 2002-Ohio-2308, 777 N.E.2d 857, at ¶ 30, quoting Hickman v. Murray , 2d Dist. Montgomery No. CA15030, 1996 WL 125916, *5 (Mar. 22, 1996). See also Orbit Electronics, Inc. v. Helm Instrument Co. , 167 Ohio App.3d 301, 2006-Ohio-2317, 855 N.E.2d 91 (8th Dist.). Because this is a question of law, we review the trial court's determination regarding this prong of the statute de novo. Pingue v. Pingue , 5th Dist. Delaware No. 06-CAE-10-0077, 2007-Ohio-4818, 2007 WL 2713763, ¶ 20.
{¶31} On the other hand, whether conduct is frivolous under R.C. 2323.51(A)(2)(a)(iii) or (iv) (whether factual contentions have evidentiary support or warranted by the evidence) presents a factual question. Southard Supply, Inc. v. Anthem Contrs., Inc. , 10th Dist. Franklin No. 16AP-545, 2017-Ohio-7298, 2017 WL 3602073, ¶ 14. A factual contention needs only minimal evidentiary support to avoid a finding of frivolous conduct, and we afford the trial court a degree of deference and will not reverse it unless the record lacks competent, credible evidence to support the trial court's finding. Id. at ¶ 14-15.
{¶32} The question here is whether no reasonable attorney would file the Grimes complaint making the factual allegations and under the existing law. Specifically, could a reasonable attorney assert the malicious civil prosecution claim against Attorney Oviatt regarding his attempt to collect a stale judgment? In other words, could one reasonably argue the collection attempts were made with malice and without probable cause? Regarding the third-party legal malpractice claim, which requires showing malice, we ask similar questions.
{¶33} On appeal, Oviatt focuses on the contention that he had probable cause to execute the Selwyn judgment — attaching Grimes's bank account and garnishing his wages — after the trial court initially found the motion to revive timely filed. Oviatt argues that, because the judgment was valid between the time the trial court initially granted his motion and this court's reversal of the revival (" Grimes II "), he had probable cause and acted without malice in executing on the revived judgment, making the filing of the Grimes complaint a frivolous and sanctionable conduct.
{¶34} A review of the trial court's judgment denying sanctions shows that the trial court instead focused on Oviatt's conduct in filing the motion to revive the 1985 Selwyn judgment. The trial court noted that, in 2012, Attorney Terry sent Attorney Oviatt a detailed letter warning him the 1985 judgment had become stale, yet, despite the warning about the staleness of the judgment, Oviatt continued his aggressive collection efforts. The trial court analogized the attempt to collect on known uncollectible debt to filing an action beyond the statute of limitations or one barred by res judicata, both found to be frivolous conduct. Stafford v. Columbus Bonding Ctr. , 177 Ohio App.3d 799, 2008-Ohio-3948, 896 N.E.2d 191 (10th Dist.) ; Mack v. Asset Acceptance , 5th Dist. Ashland No. 07-COA-044, 2008-Ohio-5108, 2008 WL 4436362.
{¶35} In other words, the trial court decided there were reasonable grounds for Attorney Terry to argue there was no probable cause for Attorney Oviatt to initiate the collection efforts of a stale judgment and the aggressive collections measures were done with malice. The trial court determined that the claims raised by Attorney Terry, regardless of their ultimate merit, may be supportable by a good faith argument under existing law and warranted by the evidence. Consequently, the trial court was not convinced no reasonable attorney would have brought these claims.
{¶36} Applying a de novo standard of review to the trial court's legal determination ( R.C. 2323.51(A)(2)(a)(ii) ) and a deferential review to the court's factual determination ( R.C. 2323.51(A)(2)(a)(iii)-(iv), we cannot say the trial court abused its discretion in denying Oviatt's motion for sanctions. Abuse of discretion is conduct by the court that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Here, the trial court certainly was not acting in an arbitrary or unconscionable manner because it carefully explained its reasoning in the decision denying the sanctions. As to whether its decision was unreasonable, "[a] decision is unreasonable if there is no sound reasoning process that would support that decision." AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Whether we ultimately agree with the court's reasoning is not determinative of this appeal — the question is whether no sound reasoning process would support the trial court's decision to deny sanctions.
{¶37} As the trial court emphasized, the record reflects a tumultuous and volatile history between the parties. Our own review also reflects that both parties have engaged in very aggressive litigation tactics pursing and defending against an old judgment. In its efforts to strike a balance between protecting the adversarial system and not allowing an attorney to exploit the system for his own purpose, the trial court here gave specific reasons before declining to conclude no reasonable lawyers would have brought the Grimes complaint under the particular circumstances of this case. Although that complaint never reached judgment, because it was eventually dismissed without prejudice, the trial court rightly observed that simply filing a claim that is unsuccessful is not automatically frivolous. State ex rel. Bunting v. Styer , 147 Ohio St.3d 462, 2016-Ohio-5781, 67 N.E.3d 755, ¶ 7. Mindful that " R.C. 2323.51 does not purport to punish a party for raising an unsuccessful claim," and that the statute should only be applied to chill "egregious, overzealous, unjustifiable and frivolous action," we are unable to conclude the trial court's decision was not supported by a sound reasoning process. Ferron v. Video Professor, Inc. , 5th Dist. Delaware No. 08-CAE-09-0055, 2009-Ohio-3133, 2009 WL 1836486, ¶ 45, 69.
{¶38} "Unless there is a clear-cut violation of the statute, a potential dilemma confronts a lawyer in satisfying his obligation of professional responsibility which requires zealous representation on one hand and satisfying his obligation under R.C. 2323.51 on the other hand." Richmond Glass & Aluminum Corp. , 7th Dist. Columbiana No. 90-C-46, 1991 WL 172902, at *2. "[I]n some close cases applying R.C. 2323.51 would have a chilling effect on legitimate advocacy by discouraging aggressive representation by the attorney for the client." Conduct is frivolous under R.C. 2323.51 only if "it is absolutely clear under the existing law that no reasonable lawyer could argue the claim." Miller v. Miller , 5th Dist. Holmes No. 11CA020, 2012-Ohio-2905, 2012 WL 2415143, ¶ 14.
{¶39} Given the high standard applied to R.C. 2323.51, we are compelled to conclude that it was within the sound discretion of the trial court to decline to award sanctions under the unique circumstances of this case. The third, fourth, and fifth assignments of error are without merit.
{¶40} The sixth assignment of error references Civ.R. 11 but Oviatt fails to separately argue that assignment of error as required by App.R. 16(A)(7). We disregard it pursuant to App.R. 12(A)(2). Hawley v. Ritley , 35 Ohio St.3d 157, 519 N.E.2d 390 (1988). Oviatt also fails to separately argue the seventh, eighth, and ninth assignments of error and we summarily overrule them as well.
c. Whether the Trial Judge Erred in Not Recusing Herself
{¶41} Under the tenth assignment of error, Oviatt argues the trial judge erred in declining to recuse herself upon remand from Grimes II.
{¶42} The record reflects that after Grimes II remanded the sanction matter to the trial court for a hearing, counsel who represented Oviatt in the sanction matter filed a motion to remove the case from the docket of the trial judge who initially dismissed the motion for sanctions. Oviatt's motion for recusal stated "[i]t is apparent that [the judge] has already made up her mind and would be unable to give Defendants fair consideration at this point in time." The trial judge denied the motion and presided over the hearing.
{¶43} On appeal, Oviatt argues the trial judge should have recused herself because she had decided against him and it would be unreasonable to believe the judge would change her mind upon remand.
{¶44} R.C. 2701.03 provides the exclusive means for a litigant claiming a common pleas court judge is biased or prejudiced. State v. Cody , 8th Dist. Cuyahoga No. 95753, 2011-Ohio-2289, 2011 WL 1843820, ¶ 16, citing State ex rel. Pratt v. Weygandt , 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph three of the syllabus. Under the statute, a litigant who believes a trial judge should be disqualified must file an affidavit of bias or prejudice with the clerk of the Supreme Court of Ohio. Only the Chief Justice or his or her designee may hear a disqualification matter and a court of appeals is without authority to entertain such a claim. Id. The tenth assignment of error is overruled.
d. Scope of the Remand from Grimes II
{¶45} Finally, we address Oviatt's claim under the first assignment of error that this court in Grimes II had already determined that Attorney Terry's conduct was frivolous and the only issue to be decided upon remand was the award of attorney fees. He claims that upon remand the trial court must find frivolous conduct under the doctrine of the law of the case.
{¶46} Our reading of Grimes II indicates that the panel, after expressing doubts about Attorney Terry's claim that Oviatt committed fraud in procuring the revival of a stale judgment and in waiting a year to execute on the revived judgment to avoid a Civ.R.60(B) motion, stated that Oviatt's motion for sanctions set forth sufficient grounds to warrant a hearing in this case. Grimes II at ¶ 31. The panel emphasized, however, that its analysis "should not be construed as commenting on the ultimate issue of whether Oviatt is entitled to recover attorney fees and costs." Id. at ¶ 32.
{¶47} By its own statements, the Grimes II panel did not conclusively determine the issue of frivolous conduct. Indeed, the record reflects that, at the hearing upon remand, the trial court heard testimony (from Selwyn, Grimes, Attorney Terry, Attorney Oviatt, and David Oakley, who represents Oviatt for the instant motion for sanctions) regarding whether Attorney Terry's conduct was frivolous in filing the Grimes complaint. At no time during the hearing did Oviatt claim that the court of appeals had already determined the existence of frivolous conduct or that the only issue to be decided at the hearing was the award of attorney fees and/or sanctions, as he now contends on appeal. The first assignment of error is without merit.
{¶48} For all the foregoing reasons, the trial court's judgment denying appellant Oviatt's motion for sanctions is affirmed.
MARY EILEEN KILBANE, A.J., and
ANITA LASTER MAYS, J., CONCUR