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LLC v. Worthen

Court of Appeals of Ohio, First District, Hamilton

June 26, 2019

217 WILLIAMS, LLC, Plaintiff-Appellee,
STEWART LEE WORTHEN, Defendant, and JOHN H. FORG, Appellant.

          Civil Appeal From: Hamilton County Municipal Court Trial Nos. 17CV-14229 17CV-14239

          Crawford Glanker, LLC, and John R. Glankler, for Plaintiff-Appellee,

          Ted L. Wills, for Appellant.


          Winkler, Judge.

         {¶1} Appellant-attorney John H. Forg appeals the judgment of the Hamilton County Municipal Court awarding sanctions in the form of attorney fees to plaintiff-appellee 217 Williams, LLC, ("appellee"). Because the court did not abuse its discretion by awarding fees, we affirm.

         The Lawsuits

         {¶2} On June 30, 2017, the appellee filed an action for forcible entry and detainer and money damages against Stewart Worthen, Forg's client and the appellee's tenant, for Worthen's nonpayment of his portion of June rent and fees related to the late payment of May's rent. Worthen, who received a housing voucher from the Cincinnati Metropolitan Housing Authority ("CMHA") due to a disability, was obligated in June to pay $172 of the contractual rent of $571. Also on June 30, Worthen's lease terminated, consistent with the notice of nonrenewal that the appellee had provided Worthen more than 30 days prior. The same day, Worthen filed an action claiming that the termination of his month-to-month tenancy was in retaliation for his complaints to CMHA about various issues. Worthen's complaint for retaliation contained a jury demand.

         {¶3} Worthen paid his June rent into escrow on July 13 and answered the appellee's complaint by denying the nonpayment of rent and raising the defense of a retaliatory eviction.

         {¶4} The appellee's cause of action for forcible entry and detainer was scheduled to be heard in July 2017 before a magistrate. At Worthen's request, the two cases were consolidated and continued indefinitely, but the magistrate ordered Worthen to pay into the court the unsubsidized amount of $172 by July 31 for July's rent and the entire contract amount of $571 by the 5th day of each subsequent month thereafter, beginning in August, until the resolution of the claims. Although the record does not contain a transcript from that hearing, the parties agree that the magistrate ordered the higher rent amount because CMHA had stopped making Worthen's subsidy payments for that apartment after the appellee had notified CMHA that Worthen's lease would not be renewed.

         {¶5} Worthen failed to pay July's rent into escrow by July 31, and on August 2, the appellee moved for an immediate hearing on the forcible entry and detainer claim so that it could take possession of the apartment unit.

         {¶6} In response, Forg, on behalf of Worthen, filed objections to the part of the magistrate's July 28 order requiring a rent bond in the amount of $571 beginning in August and requested a stay. Forg indicated in the introduction to the objections that the document was filed pursuant to Loc.R. XXIV of the Hamilton County Municipal Court ("Loc.R. XXIV"). Forg additionally amended Worthen's complaint to add claims alleging that the appellee and its general manager, Christopher Dixon, had discriminated against Worthen due to his disability in violation of R.C. Chapter 4112. If successful, these claims would jeopardize the appellee's contracts with CMHA. In addition to a general allegation of discrimination, the amended complaint contained a specific allegation that the appellee and Dixon had discriminated against Worthen by seeking a rent bond for the full contract amount with knowledge that Worthen was disabled and therefore could not afford to pay the contract amount.

         {¶7} On August 14, the appellee and Dixon moved to dismiss Worthen's amended complaint, in part due to Worthen's failure to state a claim for relief for unlawful discriminatory treatment. On the same date, Worthen finally made an escrowed payment for July's rent, but he did not make a payment for August's rent in any amount, even though the magistrate's rent bond order was never stayed.

         {¶8} On August 18, the court notified the parties that a hearing had been scheduled on the pending matters, including the appellee's motion to proceed with the forcible entry and detainer claim. When Forg appeared at the hearing on August 30, he told the trial judge that he had filed a grievance against the judge based on conduct in an unrelated case and contended the judge was required to recuse. The judge continued the case for a week to research the issue. The following day, Worthen made an escrowed payment, but only in the amount of his unsubsidized rent. Forg filed an Affidavit of Disqualification with the Ohio Supreme Court, staying the case. The Supreme Court dismissed the affidavit on the ground that it was not timely filed.

         {¶9} Subsequently, the trial judge, after a hearing, overruled Worthen's objections to the continuance bond. As Worthen had failed to comply with the terms of the continuance bond, the judge granted the appellee's motion to set a date for a forcible entry and detainer hearing. Forg then filed a second Affidavit of Disqualification with the Ohio Supreme Court, in which he explained the lateness of his first affidavit. The Supreme Court accepted the filing as timely but denied the affidavit on the merits.

         {¶10} The forcible entry and detainer cause of action was tried before a magistrate on October 10 and judgment was entered for the appellee granting restitution of the premises for the nonpayment of rent. Worthen was set out on October 20. After the set out, Forg, on behalf of Worthen, voluntarily dismissed Worthen's complaint, and Worthen admitted to Dixon that his attorney had "tak[en] these legal actions in order to buy him more time" in the apartment. The appellee moved for sanctions against Forg and Worthen under R.C. 2323.51 and Civ.R. 11.

         {¶11} The case then proceeded to a hearing before the judge on the appellee's cause of action for damages, which resulted in a judgment for the appellee and against Worthen in the amount of $4165.84.

         {¶12} Later, the court considered the appellee's motion for sanctions. At the sanctions hearing, Dixon testified to Worthen's comments about Forg's intent to delay the eviction process. Forg objected to this testimony on hearsay grounds, but later withdrew the objection. Finding frivolous conduct, the trial court granted the appellee's ...

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