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Hardin v. Naughton

Court of Appeals of Ohio, Eighth District

July 3, 2013

KATHIE M. HARDIN PLAINTIFF-APPELLEE
v.
MICHAEL NAUGHTON, ET AL. DEFENDANTS-APPELLANTS

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-735851

ATTORNEYS FOR APPELLANTS: Patrick F. Roche Davis & Young, Sean P. Allan Allan & Gallagher, L.L.P.

ATTORNEYS FOR APPELLEE Robert P. Ducatman Sheryl H. Love Jones Day North Point.

BEFORE: Boyle, P.J., Celebrezze, J., and Jones, J.

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, PRESIDING JUDGE

{¶1} Defendant-appellants, Michael and Rusty Naughton ("the Naughtons") appeal the trial court's decision denying their motion for attorney fees, raising the following assignment of error:

The trial court improperly denied defendants-appellants' motion for award of reasonable attorney fees and expenses.

{¶ 2} Finding no merit to the appeal, we affirm.

Procedural History and Facts

{¶3} The underlying case involves a contentious battle between next-door neighbors with lakefront property. Following the Naughtons' installation of playground equipment, planting of maple trees and side yard vegetation, plaintiff-appellee, Kathie Hardin — their next-door neighbor — filed the underlying action against them.[1] In her complaint, she asserted three counts and alleged the following: (1) that the Naughtons' swing set was a nuisance; (2) that the swing set and vegetation in the Naughtons' yard violated Bay Village's ordinances; and (3) that the Naughtons committed conversion by cutting down Hardin's trees. There is no dispute that the Naughtons' playground partially blocks the Hardins' lateral view of the Cleveland city skyline. The Naughtons filed a counterclaim, alleging that Hardin, through her authorized agent (a landscaper) trespassed on the Naughton property and unlawfully removed the Naughtons' arborvitaes.

{¶ 4} The parties proceeded with discovery and sought to resolve their claims through settlement. Following an unsuccessful settlement attempt, the Naughtons filed a motion for summary judgment on March 13, 2012. On May 7, 2012, the trial court granted the Naughtons' motion for summary judgment, in part. The trial court found that Count 1 for private nuisance and Count 3 for conversion fail as a matter of law as well as a portion of Count 2 dealing with the playground equipment. The court found, however, that part of Count 2 survived, concluding that there were genuine issues of material fact as to whether the arborvitae is in compliance with the city's zoning ordinance with respect to its height. The trial court therefore denied the Naughtons' motion for summary judgment regarding the planting of the arborvitae.

{¶ 5} One week later, the Naughtons voluntarily dismissed their counterclaim. Subsequently, Hardin dismissed her remaining claim and then appealed the trial court's judgment granting summary judgment.[2]

{¶ 6} On July 13, 2013, the Naughtons filed a motion for reasonable attorney fees and expenses under Civ.R. 11 and R.C. 2323.51. In their motion, the Naughtons emphasized that Hardin, along with her husband, Charles Hardin, who is a partner with the Jones Day law firm — the same law firm that represents his wife in the underlying litigation — made good on one promise: "this is going to be the most expensive swing set in history."[3] According to the Naughtons, Hardin prosecuted frivolous claims for the sole purpose of harassing and punishing the Naughtons, forcing them to incur substantial legal fees, while Hardin reaped the benefit of not having to pay attorney fees.

{ΒΆ7} Hardin opposed the motion, arguing that (1) despite relying on Civ.R. 11, the Naughtons failed to make any showing that her counsel acted with subjective bad faith with respect to signing any document, and (2) her claims were not frivolous. Although she was not successful on her claims, Hardin contended that at the very least her claims were supported by a good faith argument for an extension, modification, or reversal of existing law. With respect to her nuisance claim, Hardin argued that, although the trial court concluded that she did not have a legal interest in her view across the Naughtons' property, no single case has expressly so held. As to the zoning-ordinance claim, Hardin pointed out that part of her claim survived summary judgment. As for the claim relating to the playground equipment, she argued that no published case exists construing the Bay Village lakefront yard ordinance, or even any record from the Bay Village Building Department where the ordinance has been considered in a case similar to the instant one. Hardin further argued that her claim was consistent with a 2003 memorandum from the building director to the board of zoning appeals, recognizing that the lakefront yard ordinance was intended ...


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