author: EILEEN T. GALLAGHER, J.:

text:
    Jacqueline G. COLLINS, Plaintiff-Appellee v. Lincoln W. COLLINS, Sr., Defendant-Appellant
    No. 105945
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 19, 2018
    Stuart H. Lippe, Ann B. Maschari, 55 Public Square, Suite 1550, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT
    Sanjay K. Bhatt, Bhatt Law Office, Ltd., 2935 Kenny Road, Suite 225, Columbus, Ohio 43221, ATTORNEY FOR APPELLEE
    BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   EILEEN T. GALLAGHER, J.:

{¶ 1} Defendant-appellant, Lincoln Collins, appeals an order finding him in contempt of court for failure to comply with a judgment entry of divorce. He raises four assignments of error:

1. The trial court (magistrate and judge) abused its discretion, acted contrary to the law and facts, and committed reversible error by not dismissing appellee's motion to show cause, allowing appellee to invoke the contempt process, and finding appellant in contempt of court.
2. The trial court abused its discretion and acted unreasonably, arbitrarily, and contrary to the law and facts in its determination that it was defendant-appellant who had the duty to perfect liens on the specified assets listed in Article 12 of the judgment entry of divorce.
3. The trial court acted contrary to law and evidence, arbitrarily, unreasonably, and abused its discretion in holding appellant in contempt for non-payment of the said $80,000 to appellee and its determination that appellant provided no valid defense thereto.
4. The trial court (magistrate and judge) abused its discretion and acted unreasonably, arbitrarily, and contrary to the law and evidence in ordering, for the alleged contempt, a 30-day jail sentence and purge orders consisting of $40,000 or $30,000, respectively, lump sums to be paid by appellant within 30 days of the magistrate's and judge's orders, and $1,000 per month starting within 30 days thereafter.

{¶ 2} We find no merit to the appeal and affirm the trial court's judgment.

I. Facts and Procedural History

{¶ 3} Plaintiff-appellee, Jacqueline Collins, filed a complaint for divorce in February 2015. Shortly thereafter, in June 2015, the parties reached a settlement agreement that was incorporated into the court's judgment entry of divorce. According to the judgment entry of divorce, Lincoln operated a business referred to as Mad Hatter Automotive Service Center. The Mad Hatter was owned by a trust, and Lincoln was the trustee of the trust. The parties also owned a 2007 Hyundai Vera Cruz, a 2001 Honda Accord, a 1998 Lexus GS 300, a house, and other unspecified property.

{¶ 4} Article 12 of the judgment entry of divorce settled the distribution of marital property and provided that "Husband shall pay the Wife Eighty Thousand dollars ($80,000) within 60 days of June 4, 2015 or by August 4, 2015 as settlement." Article 12 states that "[i]f Husband fails to give Wife this settlement amount of $80,000[,] this amount shall be considered a lien against the Mad Hatter and the Vera Cruz * * * and Honda vehicles." The judgment entry of divorce also prohibited Lincoln from selling the Mad Hatter "without court approval as long as he owes Wife the $80,000 or any portions of it or owes the wife spousal support." Finally, Article 12 provided that the trial court "retain[ed] jurisdiction to modify and amend this provision in conformity with the intent of the parties."

{¶ 5} Lincoln failed to pay Jacqueline the $80,000 by the August 4, 2015 deadline, and Jacqueline filed a motion to show cause. Lincoln subsequently filed a Chapter 7 petition for bankruptcy in the United States Bankruptcy Court for the Northern District of Ohio, which was resolved a few months later.

{¶ 6} Following resolution of the bankruptcy proceedings, a magistrate held a hearing on Jacqueline's motion to show cause. Based on the parties' testimony, the magistrate found that, after the discharge of Lincoln's debts in bankruptcy, Lincoln continued to operate the muffler shop that he has operated for the last 22 years. At the time of the hearing, Lincoln had three employees and owned real property located at 3025 Superior Avenue in Cleveland, where the Mad Hatter was located. Based on this evidence, the magistrate found Lincoln in contempt of court for failure to pay Jacqueline the $80,000 required by the judgment entry of divorce and sentenced him to 30 days in jail. Lincoln could purge the contempt by paying Jacqueline $40,000 by March 1, 2017, and $1,000 per month for 40 months thereafter until the $80,000 marital property obligation is satisfied.

{¶ 7} Lincoln filed timely objections to the magistrate's decision. He argued the magistrate erred in ordering him to pay Jacqueline a specific sum of money because Article 12 of the judgment entry of divorce provided that any amount of the $80,000 that remained unpaid by the due date was considered a lien against the Mad Hatter and the Vera Cruz and Honda vehicles. Lincoln argued that the liens "provided a built-in remedy" for failure to pay the $80,000, and that the magistrate lacked authority to sentence him to jail for contempt.

{¶ 8} The trial court overruled the objections and found, in relevant part:

A review of the transcript of proceedings establishes that Defendant has failed to pay his former spouse anything towards the $80,000 obligation. There was no mention made at hearing the he had complied with lien safeguards to protect Plaintiff's interest. The Court is unclear whether Mr. Collins has any ownership in this business known as the Mad Hatter but the testimony at trial suggests that he is operating the business as though it were his. At a minimum, the Defendant should have perfected liens on the specified assets. The Court is left to wonder why no mention was made at [the] Hearing before [the magistrate] of liens. The Court is left wondering whether Mr. Collins had the legal authority to even make these liens effective.
Obviously, when Defendant filed his Bankruptcy Petition under Chapter 7[,] he was experiencing severe financial problems. But the Court notes that the Bankruptcy Stay was not effective until April 7, 2016. Defendant was to have completed payment to Ms. Collins by August 15, 2015, which is more than eight (8) months beforehand. Defendant is in contempt for having failed to pay Ms. Collins anything towards the $80,000 that he owes her.

{¶ 9} As previously stated, the trial court retained jurisdiction in the judgment entry of divorce "to modify and amend" the settlement of marital property outlined in Article 12. Accordingly, the trial court modified the magistrate's decision and the judgment entry of divorce as follows:

The Defendant is ordered to prepare a Promissory Note, in the sum of $80,000, with simple interest at a rate of 4% per annum from the date of the journalization of this Entry. Defendant's obligation under the note is to pay Plaintiff the sum of $20,000 on or before July 1, 2017. Defendant may make monthly payments of $1,000 on the balance of his obligation commencing August 1, 2017. Defendant shall secure the note by giving Plaintiff a mortgage lien within thirty (30) days from the date of this Order. The Mortgage shall adhere to Defendant's interest in the real property located at 3025 Superior Avenue Cleveland, Ohio 44114. Terms of the note shall be $80,000, payable in accordance with the terms set forth in this Order, until paid in full.

{¶ 10} Lincoln now appeals the trial court's contempt order.

II. Law and Analysis

A. Standard of Review

{¶ 11} Civ.R. 53(D)(4)(d) directs that a trial court "shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law." On appeal, the reviewing court will not disturb the trial court's rulings on objections to a magistrate's decision absent an abuse of discretion. Hissa v. Hissa , 8th Dist. Cuyahoga Nos. 99498 and 100229, 2014-Ohio-1508, 2014 WL 1407952, ¶ 17. An abuse of discretion implies a decision that is unreasonable, arbitrary, or unconscionable. State ex rel. DiFranco v. S. Euclid , 144 Ohio St.3d 571, 2015-Ohio-4915, 45 N.E.3d 987, ¶ 13.

B. Invocation of Contempt Process

{¶ 12} In the first assignment of error, Lincoln argues the trial court erred in proceeding on Jacqueline's motion to show cause because the judgment entry of divorce automatically provided liens against the Mad Hatter and the Vera Cruz and Honda vehicles upon Lincoln's failure to pay the $80,000. He contends the liens provided "a built-in remedy," and that the judgment entry of divorce does not authorize contempt proceedings.

{¶ 13} However, it was unclear whether Lincoln owned the Mad Hatter because the judgment entry of divorce states that a trust owned the Mad Hatter. Indeed, the Mad Hatter was named as a defendant in the divorce proceedings. Moreover, the judgment entry of divorce does not describe how the liens would be perfected on the marital assets. Therefore, the liens provision was not a "built-in remedy" since the liens did not automatically attach to the marital assets upon Lincoln's failure to comply with the judgment entry of divorce.

{¶ 14} The purpose of contempt is to secure compliance with the court's lawful orders. Robinson v. Robinson , 168 Ohio App.3d 476, 2006-Ohio-4282, 860 N.E.2d 1027 ¶ 27 (2d Dist.), citing Windham Bank v. Tomaszczyk , 27 Ohio St.2d 55, 271 N.E.2d 815 (1971). Lincoln admitted at the contempt hearing that he had not paid Jacqueline any part of the $80,000 required by the judgment entry of divorce and that no liens had been perfected on the marital assets. Therefore, Lincoln failed to comply with Article 12 of the judgment entry of divorce, and the trial court was authorized to use its contempt power to enforce compliance with its prior order.

{¶ 15} Lincoln nevertheless argues that the trial court could not sentence him to a jail term for failure to pay the $80,000 marital property obligation. He cites Sizemore v. Sizemore , 12th Dist. Warren No. CA2009-04-045, 2010-Ohio-1525, 2010 WL 1270362, to support his argument.

{¶ 16} In Sizemore , the Twelfth District held it was unconstitutional to hold a party in contempt for failing to pay a child support arrearage that had been reduced to a lump sum arrearage. The Sizemore court concluded that using contempt to imprison a party for failing to pay a lump sum judgment would violate Article I, Section 15 of the Ohio Constitution, which provides: "No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud." Sizemore at ¶ 18.

{¶ 17} However, we are not bound by the Twelfth District, and the Ohio Supreme Court has held that "punishment for violation of divorce decree provisions does not impinge upon the constitutional prohibition against imprisonment for debts." Pugh v. Pugh , 15 Ohio St.3d 136, 142, 472 N.E.2d 1085 (1984), citing Harris v. Harris , 58 Ohio St.2d 303, 390 N.E.2d 789 (1979). The court in Pugh specifically held that both alimony and property settlement provisions of a divorce decree " 'are orders of the court, and represent more than a debt of one spouse to the other.' " Id. at 142, 472 N.E.2d 1085, quoting Harris at 311, 390 N.E.2d 789. Therefore, an order holding a spouse in contempt of court and sentencing him to jail for failure to pay a property settlement provision does not violate constitutional provisions against imprisonment for debts. Id.

{¶ 18} Neither the lien provision in the judgment entry of divorce nor the constitutional prohibition against imprisonment for debts prohibited the trial court from holding Lincoln in contempt of court for his failure to pay his $80,000 marital property obligation.

{¶ 19} Therefore, the first assignment of error is overruled.

C. Duty to Perfect Liens

{¶ 20} In the second assignment of error, Lincoln argues the trial court erred in finding he was obligated to perfect liens on the marital assets specified in Article 12 of the judgment entry of divorce.

{¶ 21} In his objections to the magistrate's decision, Lincoln argued that the liens provided Jacqueline's sole remedy and that she should have perfected the liens on the marital assets. In overruling Lincoln's objections, the trial court observed that Lincoln might have avoided a contempt finding if he had perfected liens on the marital assets. However, the trial court did not find Lincoln in contempt for failing to perfect the liens; it found him in contempt for failing to pay Jacqueline the $80,000 required under the divorce decree for her share of the parties' marital property.

{¶ 22} Moreover, the trial court concluded that perfection of liens on the assets specified in the divorce decree might not have been feasible. The trial court found that it was "unclear whether [Lincoln] has any ownership in this business known as the Mad Hatter but the testimony at Trial suggests that he is operating the business as though it was his." It was also unclear "whether [Lincoln] had the legal authority to even make these liens effective." Because ownership of the assets was uncertain, the trial court exercised its jurisdiction to modify and amend the judgment entry of divorce by fashioning a more specific remedy that no longer required anyone to perfect liens on the marital assets.

{¶ 23} Therefore, the second assignment of error is overruled.

D. Inability to Pay

{¶ 24} In the third assignment of error, Lincoln argues the trial court abused its discretion in disregarding evidence submitted in support of his defense that he was unable to pay the $80,000 marital property obligation.

{¶ 25} In Pugh , the court distinguished between the failure to make a court-ordered payment versus an inability to make the court-ordered payment. Pugh , 15 Ohio St.3d at 140, 472 N.E.2d 1085. The inability to make a court ordered payment is a defense to a contempt charge. Liming v. Damos , 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297, ¶ 20. However, the Pugh court explained that the divorce decree " 'imports a finding of the court that he is able to pay,' " and the burden of proving an inability to pay is on the party subject to the contempt order. Pugh at 140, 472 N.E.2d 1085, quoting State ex rel. Cook v. Cook , 66 Ohio St. 566, 64 N.E. 567 (1902).

{¶ 26} "[P]roof of purposeful, willing or intentional violation of a court order is not a prerequisite to a finding of contempt." Pugh at 140, 472 N.E.2d 1085. The trial court's order fixing the amount to be paid and a party's failure to comply with that order constitutes prima facie evidence of contempt. Liming at ¶ 20. In other words, there is a presumption in favor of an ability to pay a court-ordered obligation, and the party charged with contempt bears the burden of rebutting that presumption. Id.

{¶ 27} Although the record shows that Lincoln filed a petition for bankruptcy, there is no evidence in the record establishing his inability to pay the $80,000 marital property obligation. Lincoln testified that the Mad Hatter is busy enough to employ three workers, including himself. (Tr. 17.) Although title to the business is in the name of a trust, Lincoln admitted that the business generates an income. (Tr. 16.) Lincoln also admitted that he owns the real property where the business is located. (Tr. 17.)

{¶ 28} Lincoln nevertheless argues that business has been slow and that he does not earn sufficient income from the business to make the court ordered payments. He also asserts that he has other expenses that consume the profits generated from the business. However, in Liming , the Ohio Supreme Court held that bare assertions claiming an inability to make payments are insufficient to meet satisfy the contemnor's burden of proving an inability to pay. Id. at ¶ 21. Despite the bankruptcy proceedings and Lincoln's self-serving testimony that he is unable to pay the $80,000 obligation, there was evidence that Lincoln has assets with which he could make court-ordered payments.

{¶ 29} Moreover, Lincoln offered no documentary evidence other than the bankruptcy trustee's final report that Lincoln had "no property available for distribution from the estate over and above that exempted by law." Lincoln did not produce any documents establishing his current income and expenses such as bank statements, bills, or tax returns, nor did he offer any documentary evidence regarding his assets and liabilities following the discharge of his debts in bankruptcy. He admitted that the Mad Hatter generates income and that he owns real property, but he failed to provide any documentary evidence establishing an inability to pay the $80,000 marital property obligation. Therefore, the trial court acted within its discretion when it concluded that Lincoln failed to meet his burden of proving an inability to pay his marital property $80,000 obligation.

{¶ 30} The third assignment of error is overruled.

E. Civil Contempt

{¶ 31} In the fourth assignment of error, Lincoln argues the trial court abused its discretion by imposing a 30-day jail sentence and a purge order requiring him to pay a $20,000 lump sum followed by periodic payments of $1,000 per month. Again, Lincoln asserts that a jail term violates Article I, Section 15 of the Ohio Constitution, which states, in relevant part that "[n]o person shall be imprisoned for debt in any civil action * * *."

{¶ 32} However, as previously explained, punishment for violation of a divorce decree does not violate the constitutional prohibition against imprisonment for debts. Pugh , 15 Ohio St.3d at 140, 472 N.E.2d 1085. And Lincoln failed to meet his burden of establishing that he lacks the ability to pay a lump sum of $20,000 followed by monthly payments in the amount of $1,000. If a $20,000 lump sum payment is beyond Lincoln's means, he should have provided documentary evidence to establish that fact. But in the absence of evidence establishing an inability to make the court ordered payments, we cannot say that the trial court abused its discretion by holding Lincoln in contempt and requiring him to make a lump sum payment of $20,000 followed by monthly payments of $1,000 month until the entire $80,000 is paid in full to purge the contempt order.

{¶ 33} The fourth assignment of error is overruled.

{¶ 34} Judgment affirmed.

MARY EILEEN KILBANE, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR

      The judgment entry of divorce required Lincoln to pay Jacqueline spousal support in the amount of $500 per month for 24 months.


source: Caselaw Access Project

author: JENSEN, J.

license: Public Domain

text:
    Veronica ROHLMAN, Appellee v. Joshua ROHLMAN, Appellant
    No. L-17-1204
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: April 20, 2018
    Erik Wineland, for appellee.
    Gary L. Smith, Swanton, for appellant.
    DECISION AND JUDGMENT
   JENSEN, J.

I. Introduction

{¶ 1} Appellant, Joshua Rohlman, appeals the judgment of the Lucas County Court of Common Pleas, Domestic Relations Division, awarding appellee, Veronica Rohlman, the sum of $102,981.97 "as and for spousal support" after finding appellant in contempt for failing to comply with the terms of the parties' final judgment entry of divorce.

A. Facts and Procedural Background

{¶ 2} The facts in this case are not in dispute. The parties were divorced on April 28, 2010. The final judgment entry of divorce, which was agreed upon by the parties, contains two provisions that are relevant to this appeal. First, the entry states: "Neither party shall pay spousal support to the other and this provision shall be non-modifiable." The second relevant provision provides, in pertinent part:

In the event of a monetary recovery by [appellant] as a result of the injuries he sustained on or about January 1, 2009, [appellee] shall be entitled to a portion of that recovery as follows:
a. * * *
b. If [appellant's] gross recovery is less than $500,000, [appellee] shall receive 18% of the gross recovery as and for spousal support, loss of services, and as a full and complete division of property.

{¶ 3} On November 25, 2015, appellee filed a motion to show cause in light of appellant's failure to pay her 18 percent of the $425,000 settlement he received as a result of the aforementioned injuries. The matter proceeded to a hearing before a magistrate who, on June 15, 2017, found appellant in contempt of the court's final judgment entry of divorce for failing to pay appellee $76,500, which represented her 18 percent share in appellant's gross recovery from his lawsuit. Additionally, the magistrate awarded appellee $25,000 in attorney fees and $1,481.97 as litigation expenses, for a total award of $102,981.97. In its entry, the magistrate stated that appellee was awarded $102,981.97 "as and for spousal support." The trial court subsequently adopted the decision in its entirety.

{¶ 4} Four days later, appellant filed his objections to the magistrate's decision, in which he argued that the trial court had no jurisdiction to characterize its award as spousal support because the final judgment entry of divorce specifically provided that no spousal support would be awarded and that the spousal support issue was not modifiable. Appellant also took issue with the trial court's classification of attorney fees and litigation expenses as spousal support under R.C. 3105.73.

{¶ 5} Upon review, the trial court issued its decision denying appellant's objections on July 19, 2017. Appellant's timely notice of appeal followed.

B. Assignment of Error

{¶ 6} On appeal, appellant assigns the following error for our review:

The Trial Court Erred by Converting an Unpaid Property Settlement, Attorney Fees, and Court Costs into Spousal Support in Direct Contravention of O.R.C. Sections 3105.18 and 3105.73.

II. Analysis

{¶ 7} In his sole assignment of error, appellant contends that the trial court ran afoul of R.C. 3105.18 and 3105.73 when it classified its $102,981.97 award as spousal support.

{¶ 8} An appellate court will not reverse the decision of a lower court in a contempt proceeding absent a showing of an abuse of discretion. State ex rel. Ventrone v. Birkel , 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981), citing Cady v. Cleveland Worsted Mills Co. , 126 Ohio St. 171, 184 N.E. 511 (1933). The term "abuse of discretion" implies that the trial court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 9} Appellant does not contest the trial court's contempt finding, nor does he challenge the amount of the court's award. Rather, appellant's argument is limited to the classification of the award as spousal support. First, appellant asserts that the trial court improperly modified the final judgment entry of divorce by ordering him to pay spousal support, where the divorce entry stated that no such spousal support would be ordered and that the spousal support prohibition was non-modifiable.

{¶ 10} Relevant here, R.C. 3105.18 provides, in pertinent part:

(B) In divorce and legal separation proceedings, upon the request of either party and after the court determines the division or disbursement of property under section 3105.171 of the Revised Code, the court of common pleas may award reasonable spousal support to either party.
* * *
(E) If * * * a continuing order for periodic payments of money as spousal support is entered in a divorce or dissolution of marriage action that is determined on or after January 1, 1991, the court that enters the decree of divorce or dissolution of marriage does not have jurisdiction to modify the amount or terms of the alimony or spousal support unless the court determines that the circumstances of either party have changed and unless one of the following applies:
In the case of a divorce, the decree or a separation agreement of the parties to the divorce that is incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.

{¶ 11} Referencing R.C. 3105.18(E)(1), appellant insists that the trial court had no jurisdiction to award spousal support to appellee upon its finding of contempt. We find no merit to this argument. By its express terms, R.C. 3105.18(E)(1) applies to "a continuing order for periodic payments of money as spousal support." There is no such order contained in the final judgment entry of divorce, and the trial court did not order appellant to make periodic payments of money to appellee as spousal support. Thus, R.C. 3105.18(E)(1) is inapplicable in this case.

{¶ 12} Further, we disagree with appellant's assertion that the trial court modified its prior entry. Indeed, the entry directed appellant to pay appellee 18 percent of the gross proceeds of his settlement, which amounts to $76,500. The entry stated that this payment would be made to appellee "as and for spousal support, loss of services, and as a full and complete division of property." When appellant failed to make the required payment, he was found in contempt and the court simply ordered appellant to comply with the divorce entry by making the $76,500 payment, along with attorney fees and court costs that appellee incurred as a result of appellant's noncompliance with the divorce entry, as and for spousal support.

{¶ 13} Appellant challenges the court's classification of its award as spousal support because the divorce entry included a provision that disallowed spousal support. However, as noted above, the entry also provided for the 18 percent payment and treated it as, inter alia, spousal support. Given these conflicting provisions, we find that the divorce entry, which appellant drafted, is ambiguous. On that issue, appellant asserts, with no supporting evidence, that the language "as and for" was really intended to mean "in lieu of."

{¶ 14} " 'A judgment entry to which the parties voluntarily agree and/or consent is essentially a contract between the parties.' " Capital Income & Growth Fund, LLC v. Hanson , 6th Dist. Lucas Nos. L-15-1163, 2016-Ohio-2973, 2016 WL 2839645, ¶ 7, quoting Deutsche Bank Nat'l Trust Co. Ams. v. Weber , 12th Dist. Butler No. CA2009-10-264, 2010-Ohio-1630, 2010 WL 1443281, ¶ 13. "[I]t is axiomatic that contracts * * * are construed against the drafter." Cranberry Fin., LLC v. S & V Partnership , 186 Ohio App.3d 275, 2010-Ohio-464, 927 N.E.2d 623, ¶ 11 (6th Dist.). "In other words, he who speaks must speak plainly or the other party may explain to his own advantage." McKay Mach. Co. v. Rodman , 11 Ohio St.2d 77, 80, 228 N.E.2d 304 (1967).

{¶ 15} Construing the ambiguity within the divorce entry against appellant, we find that the trial court properly classified its award as spousal support. Appellant's suggestion that the 18 percent payment was to be made to appellee in lieu of spousal support amounts to a complete modification of the divorce entry's language for appellant's benefit, in violation of the aforementioned principle that ambiguous contracts are to be construed against the drafter.

{¶ 16} Next, appellant argues that the trial court erred in ordering him to pay spousal support without first considering the spousal support factors under R.C. 3105.18(C)(1), which provides:

(1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors:
(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code ;
(b) The relative earning abilities of the parties;
(c) The ages and the physical, mental, and emotional conditions of the parties;
(d) The retirement benefits of the parties;
(e) The duration of the marriage;
(f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home;
(g) The standard of living of the parties established during the marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
(j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professional degree of the other party;
(k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;
(l) The tax consequences, for each party, of an award of spousal support;
(m) The lost income production capacity of either party that resulted from that party's marital responsibilities;
(n) Any other factor that the court expressly finds to be relevant and equitable.

{¶ 17} Regarding the $76,500 payment appellant was ordered to pay appellee pursuant to the terms of the divorce entry, we find that the foregoing spousal support factors are inapplicable because the spousal support was agreed upon by the parties in the divorce entry. See Thomas v. Thomas , 5 Ohio App.3d 94, 100, 449 N.E.2d 478 (5th Dist. 1982) (" R.C. 3105.18 directs the procedures to be followed by the trial courts in contested proceedings and is not applicable to uncontested proceedings where the parties have stipulated an 'in-court' settlement."); Van Hoose v. Van Hoose , 2d Dist. Champaign No. 99CA18, 2000 WL 353213, *3 (Apr. 7, 2000) (stating that "a trial court is not required to consider the factors set forth in R.C. 3105.18(C) where the parties have stipulated to an in-court settlement agreement").

{¶ 18} As to the trial court's award of attorney's fees and litigation expenses to appellee, R.C. 3105.73 provides, in part:

(B) In any post-decree motion or proceeding that arises out of an action for divorce, dissolution, legal separation, or annulment of marriage or an appeal of that motion or proceeding, the court may award all or part of reasonable attorney's fees and litigation expenses to either party if the court finds the award equitable. In determining whether an award is equitable, the court may consider the parties' income, the conduct of the parties, and any other relevant factors the court deems appropriate, but it may not consider the parties' assets.
* * *
(D) Nothing in this section prevents an award of attorney's fees and litigation expenses from being designated as spousal support, as defined in section 3105.18 of the Revised Code.

{¶ 19} "When attorney fees are awarded as spousal support, the trial court must consider the factors of R.C. 3105.18(C)." Bils v. Bils , 6th Dist. Wood No. WD-09-026, 2009-Ohio-6679, 2009 WL 4893383, ¶ 41, citing Forbis v. Forbis , 6th Dist. Wood Nos. WD-04-056, WD-04-063, 2005-Ohio-5881, 2005 WL 2931851, ¶ 83. A trial court's determination concerning an award of attorney fees as spousal support is reviewed for an abuse of discretion. Id. at ¶ 41, citing Rash v. Rash , 6th Dist. Fulton No. F-04-016, 2004-Ohio-6466, 2004 WL 2785528, ¶ 53.

{¶ 20} The record in this case belies appellant's assertion that the trial court failed to consider the equitable factors contained in R.C. 3105.18(C)(1) and 3105.73(B). In its order overruling appellant's objections to the magistrate's decision, the trial court noted several facts that support its classification of the attorney's fees and litigation expenses as spousal support. Specifically, the court found that appellant was aware that he owed appellee money, yet he purchased a home, removed significant amounts of money from his bank accounts during the pendency of this case, and spent what the court described as an "inordinate amount of money" less than one month after appellee filed her motion to show cause. Despite his clear obligation to pay appellee her share of his settlement proceeds, appellant chose to withhold the funds, forcing appellee into extensive litigation. Given appellant's contemptuous conduct in this case, we find that the trial court's award of attorney's fees and litigation expenses was equitable and its classification of those fees and expenses was not an abuse of discretion.

{¶ 21} Accordingly, appellant's sole assignment of error is not well-taken.

III. Conclusion

{¶ 22} In light of the foregoing, the judgment of the Lucas County Court of Common Pleas, Domestic Relations Division, is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Mark L. Pietrykowski, J.

Christine E. Mayle, P.J.

CONCUR.


author: HALL, J.

text:
    Ted GILLESPIE, Plaintiff-Appellant v. WATERWHEEL FARMS, INC., et al., Defendants-Appellees
    No. 2017-CA-16
    Court of Appeals of Ohio, Second District, Miami County.
    Rendered on April 20, 2018
    DAVID E. DAVIDSON, Atty. Reg. No. 0016543, 50 East Rivercenter Blvd. Suite 1400, Covington, Kentucky 41011, Attorney for Plaintiff-Appellant
    JAMES D. UTRECHT, Atty. Reg. No. 0015000, 12 S. Plum Street, Troy, Ohio 45373, Attorney for Defendant-Appellee
   HALL, J.

{¶ 1} Ted Gillespie appeals from the trial court's entry of summary judgment against him on his complaint against appellees Waterwheel Farms, Inc., Paul D. Thies, and Richard Thies for damages he sustained as a result of being bitten by a dog.

{¶ 2} In his sole assignment of error, Gillespie contends the trial court erred in entering judgment against him as a matter of law on a strict-liability claim under R.C. 955.28(B).

{¶ 3} The record reflects that Gillespie, a delivery driver, was bitten while completing a delivery to the appellees' farm. His complaint included causes of action based on common-law negligence and strict liability under R.C. 955.28(B). In a May 3, 2017 ruling, the trial court entered partial summary judgment against Gillespie, resolving only his statutory claim. Thereafter, on July 14, 2017, the trial court entered summary judgment against him on his remaining common-law claim.

{¶ 4} With respect to Gillespie's statutory claim, which is the sole subject of his appeal, the trial court made the following factual findings:

Plaintiff was bitten by a dog owned by the Defendants on or about June 2, 2014. The incident occurred at the Defendants' grain farm located at State Route 48, Union, Miami County, Ohio. The Defendants kept dogs in the machine shop located on the farm to deter nighttime burglaries. Plaintiff was delivering a load of anhydrous ammonia when the incident occurred. This was the first time Plaintiff had been on Defendants' property. When the Plaintiff arrived, he was met by a "hired hand" who told him that he would be there when Plaintiff finished delivering his load to help guide Plaintiff's truck off of the property.
After the Plaintiff delivered the load of anhydrous ammonia, he entered a building on the property to obtain a signature on a Bill of Lading from the hired hand. The Plaintiff made his way to the machine shop through a small vestibule that was not lighted. Defendants had placed a handwritten warning sign on the shop door which indicated "DO NOT Enter Shop Without Permission. Dogs on Duty!" Plaintiff maintains that he did not see the warning sign, nor did he see or hear the dogs before opening the door. Plaintiff does not claim, nor is there any evidence to suggest that Plaintiff was given permission to enter the building or the machine shop located inside a separately secured room in the building.

(Doc. # 26 at 1-2).

{¶ 5} Based on the foregoing facts, the trial court found the appellees entitled to summary judgment on Gillespie's statutory claim. Specifically, it determined that he was committing criminal trespass, as a matter of law, when he opened the shop door and immediately was bitten on the face by one of the dogs. Therefore, the trial court found applicable a criminal-trespass affirmative defense to strict liability under R.C. 955.28(B). In support of its decision, the trial court reasoned:

The Court finds that, even when construing the evidence most favorably to the Plaintiff, that there are no issues of genuine fact and that the Defendants are entitled to a judgment as a matter of law because the Plaintiff was trespassing when he opened the door and entered the Defendants' building without permission and he remained a trespasser as he walked through the vestibule and opened the shop door with the posted warning sign. At no time did the Defendants or their agents instruct nor invite the Plaintiff to enter the building or the separately secured shop. The Plaintiff was a trespasser as a matter of law. It is immaterial that Plaintiff claims he did not see the warning sign on the shop door. He had no right, implied or direct, to enter the building through a closed door or to attempt to enter the separately secured shop. Because Plaintiff was a trespasser, the Defendants owed him no duty and they have proved the affirmative defense available under the statute.
To find otherwise would in effect work as a judicial permission slip to all delivery personnel. Can a delivery person walk through an open garage, open a door and walk into someone's kitchen because they want to obtain a signature for a package, the answer is NO.
Defendant's building was clearly delineated and moreover, it was secured when Plaintiff began searching for a door to gain access. His first attempt to access the building found a "locked door." It is undisputed that the door through which he gained access was "closed," as was the shop door where the dogs were located.
Plaintiff does not argue, for good reason, that the "hired hand" gave him permission to enter the building or the shop when he told him that he would "be there" when Plaintiff finished his delivery "to help guide his truck." "There" meant outside the building where Plaintiff's truck was located. At no time did Defendants' hired hand invite or even imply that the Plaintiff could come inside the building or the shop once he was done with his delivery. In fact, the hired hand did not tell Plaintiff where he was going and the Plaintiff admits that he had no idea where he went. Nevertheless, the Plaintiff took it upon himself to enter the building and the shop without permission in an effort to find the hired hand. The Court also notes that the Plaintiff had been trained to leave the Bill of Lading, unsigned, in a mailbox or other location in the event that a signature could not be obtained. The Plaintiff chose to ignore his training and trespassed into Defendants' secured building and separately secured shop.
As an aside, the Court has reviewed Defendants' Exhibits D-1 through D-17, which are photographs of the shop door and warning sign, and finds Plaintiff's deposition testimony lacking credibility as it relates to his position that he did not see the sign. The sign is large and was hung at eye level. Although not material to the Court's decision, the Court finds Plaintiff's deposition testimony to lack credibility on this issue.

(Doc. # 26 at 6-8, footnotes omitted).

{¶ 6} On appeal, Gillespie contends the trial court erred by failing to construe the evidence most strongly in his favor and by misapplying R.C. 955.28(B). Relying on his own deposition testimony, Gillespie asserts that he never reached the shop where the warning sign was posted, that he would not have seen the sign anyway, and that the sign did not provide fair warning due to darkness in the building. With regard to the statute, Gillespie argues that he remained an invitee, not a criminal trespasser, when he encountered the dog that bit him. He argues that the only door he entered led to a business office, which he was trying to locate to get his paperwork signed. Based on that premise, he maintains that the criminal-trespass affirmative defense did not apply. At a minimum, Gillespie asserts that his deposition testimony raises genuine issues of material fact for trial.

{¶ 7} Under Civ.R. 56, a trial court may enter summary judgment for the moving party "if there are no genuine issues of material fact remaining to be litigated, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed most strongly in his favor." (Citation omitted.) Smith v. Five Rivers MetroParks , 134 Ohio App.3d 754, 760, 732 N.E.2d 422 (2d Dist. 1999). "We review summary judgment decisions de novo, which means that we apply the same standards as the trial court." (Citations omitted.) GNFH, Inc. v. W. Am. Ins. Co. , 172 Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.).

{¶ 8} Having reviewed the record, we conclude that the trial court erred in entering summary judgment against Gillespie on his claim under R.C. 955.28(B), which states in relevant part: "The owner, keeper, or harborer of a dog is liable in damages for any injury * * * that is caused by the dog, unless the injury * * * was caused to * * * an individual who, at the time, was committing or attempting to commit criminal trespass[.]" The trial court correctly recognized that the statute imposes strict liability subject to a criminal-trespass affirmative defense. Beckett v. Warren , 124 Ohio St.3d 256, 2010-Ohio-4, 921 N.E.2d 624, ¶ 10. Under R.C. 2911.21(A)(1), a criminal trespass occurs when a person, without privilege, knowingly enters or remains on the land or premises of another. Under R.C. 2901.01(A)(12), "privilege" is defined as "an immunity, license, or right conferred by law, bestowed by express or implied grant, arising out of status, position, office, or relationship, or growing out of necessity."

{¶ 9} Gillespie was not a trespasser when he arrived at the appellees' farm and began filling their tank with anhydrous ammonia. Appellee Paul Thies admitted in his deposition that he orders anhydrous ammonia and asks for it to be delivered to the farm. (Thies depo. at 42). Therefore, Gillespie had the status of an "invitee" when he delivered the anhydrous ammonia on the occasion in question. "Invitees are persons who rightfully come upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner." Gladon v. Greater Cleveland Regional Transit Auth. , 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996). However, an invitee's status "is limited by the landowner's invitation." Id. A person " 'has the status of an invitee only while he is on the part of the land to which his invitation extends-or in other words, the part of the land upon which the possessor gives him reason to believe that his presence is desired for the purpose for which he has come.' " Id. , quoting 2 Restatement of the Law 2d, Torts (1965), 181 - 182, Section 332, Comment I. " 'If the invitee goes outside of the area of his invitation, he becomes a trespasser or a licensee, depending upon whether he goes there without the consent of the possessor, or with such consent.' " Id. "The test for considering the scope of the invitation is objective and depends upon how a reasonable person would interpret the purpose for which the land is held open and for which the possessor desires persons to enter." Wanko v. Downie Productions, Inc. , 10th Dist. Franklin No. 99AP-1047, 2000 WL 1199235, *3 (Aug. 24, 2000), citing Conniff v. Waterland, Inc. , 118 Ohio App.3d 647, 651, 693 N.E.2d 1127 (11th Dist. 1997). "Relevant considerations include the possessor's conduct, the nature of the business conducted on the premises, and the arrangement and design of the premises." Id.

{¶ 10} In his deposition, Gillespie testified that he arrived at the farm around 7:00 p.m. or 7:30 p.m. on June 2, 2014. He spoke with a "hired hand" for about thirty minutes while waiting for the worker to fill a "nurse tank," which was blocking Gillespie's access to a main holding tank that he was to fill with the anhydrous ammonia. (Gillespie depo. at 55-58). At some point, another unidentified man approached and joined in the conversation. (Id. at 60). After filling the nurse tank, the employee moved out of the way. (Id. at 59-60). Gillespie proceeded with his work and did not see where either of the two men went. (Id. at 60, 64-65). He finished filling the holding tank at approximately 9:30 p.m. (Id. at 68). To complete his delivery, Gillespie was supposed to get a bill of lading signed. (Id. at 66). If no one was available, his employer permitted him to leave a copy in a mailbox. (Id. at 67).

{¶ 11} Gillespie did not see either of the two men when he finished his work, although the hired hand had said he would be back to help Gillespie maneuver his truck out. About sixty feet away from where he had been working, however, Gillespie observed a large metal building with a "huge" overhead door. (Id. at 66, 69). He also noticed a bright light being emitted around the outline of the door. (Id. at 66). It was getting dark outside, and Gillespie, who never had been to the farm before, suspected that the two men might have gone inside the building. (Id. at 66, 68). He proceeded to walk toward the light in the building. He encountered a locked door on one side of the building, which he described as a "tool shed." (Id. at 66). He then saw a second door that was unlocked. Gillespie opened that exterior door and entered into a small, dark "vestibule." ( Id. at 70-71, 76). He estimated that the vestibule was approximately "four foot by five foot" in size. Inside the vestibule, he saw a door to the left with a window. Light was coming through that window. (Id. at 71, 76). Gillespie opened that door and immediately was attacked by the appellees' dogs, one of which bit him on the face. (Id. at 71). Gillespie did not hear the dogs before the incident, and he did not see any sign in the window. (Id. at 71-73). Gillespie could not say whether the interior door he opened went to a shop or to an office, as he never actually passed through the door. (Id. at 74, 77). As he backed away and tried to shut the door, one of the dogs jumped up and bit his mouth. (Id. at 78-79).

{¶ 12} In his deposition testimony, appellee Paul Thies described the building at issue as being approximately eighty feet by ninety feet in size. He referred to the building as a whole as a "shop" and explained that it was used to repair equipment. (Thies depo. at 15-16). The building also contained a business office, a lunchroom, a workshop, and a restroom. (Id. at 18, 38-39, 56-57). Thies agreed that the building fairly could be characterized as the farm's "principal place of business." (Id. at 18). He acknowledged that there "may" or "might" have been a sign on or near the exterior door leading into the building that said "office." (Id. at 39, 55-56). Upon entering the building, Thies believed there also was a sign on one of the interior doors that said "office" on it. (Id. at 38).

{¶ 13} Although he was not present at the farm when Gillespie was bitten, Thies testified that the dogs were kept inside the workshop at night and that there was a warning sign on the workshop door about the dogs. (Id. at 57-60, 67). Thies testified that Gillespie would have been required to open three doors to get to the workshop where the dogs were kept. (Id. at 80). Specifically, he would have been required to open and enter the exterior door. He then would have been required to open the lunchroom door and go through the lunchroom before reaching the workshop door, which had the warning sign about the dogs. (Id. at 39, 49-51, 53-58).

{¶ 14} Construing the foregoing evidence most strongly in Gillespie's favor, we find genuine issues of material fact as to whether he remained an invitee at the time of his injury. After filling the appellees' holding tank, Gillespie looked for someone to sign a bill of lading. Although it was approximately 9:30 p.m., it was not beyond the farm's operating hours. Thies testified that the exterior doors to the building always were locked at night when the workers left the farm. (Id. at 47-48, 55). On this occasion, Thies' son and the hired hand remained working in a back field. (Id. at 62-65). As set forth above, Gillespie approached the building and opened an unlocked exterior door that Thies acknowledged "may" have had a sign on or near it saying "office."

{¶ 15} Gillespie testified multiple times during his deposition that once inside the building he opened only one interior door and that he was bitten immediately upon opening it. In contrast to Gillespie's testimony, Thies testified that Gillespie would have been required to open a total of three doors before encountering the dogs behind the workshop door that had the warning sign. At least two competing inferences can be drawn from this conflicting testimony. One inference is that Gillespie is mistaken about the number of doors he opened inside the building. Another inference is that the dogs were behind a door other than the workshop door. Thies testified that the dogs always were kept in the workshop "at night" to guard the property. (Thies depo. at 48, 60). He was not present on this occasion, however, and lacked first-hand knowledge about the dogs' location. Additionally, as noted above, the building's exterior door remained unlocked and workers remained in the fields. Under these circumstances, and particularly in light of Gillespie's insistence that he opened only one interior door, a trier of fact reasonably might conclude that the dogs were not in the workshop when he encountered them. And if the dogs were not in the workshop, then the warning sign on the workshop door would be irrelevant.

{¶ 16} Gillespie testified that upon entering the small vestibule or hallway he promptly encountered a door to the left, which he opened and which had the dogs behind it. (Gillespie depo. at 70-71). According to Thies, however, Gillespie would have approached the workshop door not from the vestibule or hallway but from the lunchroom. (Thies depo. at 51). Thies testified that upon entering the building, a person would be in a hallway with an interior office door immediately to the right. (Id. at 49, 51). Although Gillespie recalled opening a door to the left upon entering the vestibule, Thies' testimony suggests that the only interior door immediately available in the vestibule or hallway was the office door on the right . Thus, it could be that the interior door Gillespie opened actually was the office door. At a minimum, we find genuine issues of material fact for trial. Taking into consideration the nature of the farm operation, the fact that the building housed the appellees' business office, the reason for Gillespie's presence, and the seemingly conflicting testimony about the location of the dogs, construing the evidence most favorably for Gillespie, we believe there are genuine issues of fact regarding whether Gillespie was an invitee or a criminal trespasser, when he was bitten by the appellees' dog.

{¶ 17} But even if Gillespie did not remain an invitee, a trier of fact reasonably could conclude that his status transformed into that of a licensee rather than a criminal trespasser. A licensee is "a person who enters the premises of another by permission or acquiescence, for his own pleasure or benefit, and not by invitation[.]" Light v. Ohio University , 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986). "Whether one is a trespasser or a licensee is often difficult to determine and frequently turns upon the peculiar circumstances connected with the particular entry." Keesecker v. G.M. McKelvey Co. , 141 Ohio St. 162, 167, 47 N.E.2d 211 (1943).

{¶ 18} Although Gillespie was an invitee on the appellees' property for purposes of filling their holding tank, he arguably entered the building at issue for his own benefit to have someone sign a copy of the bill of lading. Even if this is true, a trier of fact reasonably could find that he did so with the appellees' implicit permission or acquiescence insofar as he entered a building that admittedly housed their farm office (and that may have exhibited an exterior sign designating it as the office)

during working farm hours while farm employees remained on the property.

{¶ 19} In Keesecker , a deliveryman inadvertently delivered a package to the wrong house. In doing so, he opened an unlocked door to an enclosed porch, entered the porch, and rang a doorbell. As he did so, a child fell from the porch and sustained injuries. In a resulting tort action against the deliveryman's employer, a key issue was whether the deliveryman was a trespasser or a licensee. The Ohio Supreme Court found a genuine issue of material fact, reasoning:

In the pending litigation there is no dispute that the porch was enclosed. The evidence tends strongly to show that the porch contained furniture and that the door leading into it was shut. Moreover, the advent of any deliveryman from the McKelvey store was not anticipated by the Keeseckers during the afternoon in controversy.
On the other hand, in this day and age it is a matter of general knowledge that deliverymen, tradespeople and others having business or prospective business with the occupants of a private dwelling, or being in quest of information, commonly call at the front door. In the present case the porch door was unlocked, there was no warning to stay out, a doorbell was located beside the inside door, and the deliveryman was of the honest belief that the package he carried was to be left at the Keesecker residence.
Therefore, was the deliveryman guilty of an unauthorized or unlawful intrusion onto the porch, making him a trespasser, or was he confronted by appearances which would justify him in inferring that the owner or occupant had given tacit or implied assent to persons in a similar position to his to enter upon the porch and go to the other door for ordinary transactions, thus placing them in the category of licensees?
The rule is well established in this state that when the uncontradicted evidence discloses circumstances from which different minds may reasonably draw different conclusions, one favorable and the other unfavorable to the claim of a party, the evidence should be submitted to the jury under pertinent instructions. * * *

Keesecker at 167-168, 47 N.E.2d 211 ; see also Clary v. McDonald , 120 Ohio App. 8, 11-12, 200 N.E.2d 805 (4th Dist. 1963), quoting 38 American Jurisprudence, 794, Section 133 (" 'It has been held that a person who visits a portion of a store not frequented by visitors, entirely on his own business, without the owner's invitation or knowledge, is a mere licensee[.]").

{¶ 20} Although the facts of the present case differ from those of Keesecker , the critical inquiry is similar. Gillespie entered a closed but unlocked door despite the fact that the appellees argue they did not intend for him to do so. On the other hand, the appellees reasonably might anticipate a deliveryman such as Gillespie approaching a building that housed their business office during farming hours and opening unlocked doors in search of someone to sign his bill of lading. Under these circumstances, we believe the trial court erred in finding that Gillespie had committed criminal trespass as a matter of law.

{¶ 21} This court's opinion in Prather v. Whitaker , 2d Dist. Montgomery No. 17972, 2000 WL 331802 (March 31, 2000), upon which the appellees rely, is not to the contrary. In Prather , the plaintiff, a delivery driver, injured his ankle while being chased by the defendants' dog as he delivered a package to their home. The plaintiff initially took the package to the defendants' front door. After no one answered, he decided to place the package inside a fenced area. He did not recall seeing a no-trespassing sign on the fence or a lock on the gate, but he did not deny the existence of a sign. Upon stepping through the gate, the plaintiff encountered a growling dog that bit his clipboard. The plaintiff ran away and injured his ankle. One of the defendants testified at trial that a no-trespassing sign was on the fence and a scissor lock was on the gate. The trial court granted the defendants a directed verdict on the basis of the trespass affirmative defense in R.C. 955.28(B).

{¶ 22} On appeal in Prather , this court recognized that the plaintiff had at least implied permission to enter the unfenced portion of the defendants' property to deliver the package. Id. at *2. This court reasoned, however, that the plaintiff had no permission to enter the area delimited by a six-foot high fence with a no-trespassing sign:

We conclude that the Whitakers' use of a physical barrier, in conjunction with the use of a posted sign placed where a reasonable person would be able to see it, gave adequate warning of the intent to restrict access to the fenced-in area of the yard. Regardless of whether Prather's actions prevented him from actually observing the sign, the area was restricted. Given that Prather did not dispute the evidence that the sign was posted, and that he still proceeded to enter a clearly delimited area, we conclude that the trial court correctly found that reasonable minds could only find that he was a trespasser.

Id. at *3.

{¶ 23} Upon review, we find Prather distinguishable. As a threshold matter, this court interpreted the version of R.C. 955.28(B) then in effect as providing an affirmative defense for both civil and criminal trespass. The present version of the statute unambiguously limits the defense to criminal trespass. But even setting aside that distinction, Prather is distinguishable on its facts. Prather involved a delivery driver's entry into a fenced, residential yard with a no-trespassing sign. Here Gillespie entered a building that housed the appellees' commercial business office. Paul Thies admitted that the exterior door in fact may have said "office" on it. Gillespie testified that once inside the building he opened one door (which on the record before us could have been the office) and was bitten by a dog. Although the appellees contend the dogs were deeper in the building behind a workshop door that had a warning sign in the window, Gillespie's testimony suggests that the dogs were not in the workshop. But even if Gillespie did open the workshop door, he testified that the vestibule where he stood was dark and that the only light was coming from the other side of the door. Unlike Prather , then, a trier of fact could find that the warning sign was not reasonably visible and did not provide adequate warning.

{¶ 24} Based on the reasoning set forth above, we sustain Gillespie's assignment of error and reverse the trial court's entry of summary judgment against him on his strict-liability claim under R.C. 955.28(B). The matter is remanded to the trial court for further proceedings consistent with this opinion.

FROELICH, J., and TUCKER, J., concur.

      Under a prior version of the statute, uncertainty existed about whether civil trespass was sufficient to trigger the affirmative defense. See , e.g. , Prather v. Whitaker , 2d Dist. Montgomery No. 17972, 2000 WL 331802, *4 (March 31, 2000). Effective September 30, 2008, the General Assembly modified the statute to its current form, which limits the affirmative defense to criminal trespass.

      Although the statute also sets forth other ways in which a criminal trespass can occur, the trial court found R.C. 2911.21(A)(1) applicable here. (See Doc. # 26 at 5).

      Although Gillespie did not mention relying on a sign on the exterior door, the test for whether he remained an invitee "is objective and depends upon how a reasonable person would interpret the purpose for which the land is held open and for which the possessor desires persons to enter." Wanko at *3. Thus, the potential existence of an "office" sign on the exterior door is relevant to whether a reasonable person would open the door.

      Parenthetically, even if Gillespie did open the workshop door, he testified that the vestibule where he stood was dark and that the only light was coming from the other side of the door. Under these circumstances, a trier of fact might conclude that the warning sign was not reasonably visible.


author: Cunningham, Presiding Judge.

text:
    Randall FIROR, Individually and as Executor of the Estate of Hugh V. Firor, M.D.,
    Thomas Firor, M.D., Individually,
    David Homer, as Successor Trustee of the Hugh V. Firor, M.D., Revocable Trust, Plaintiffs-Counterclaim Defendants/Appellants, and Randall Firor, and Thomas Firor, M.D., as Co-Trustees of the Betty Bourdon Firor Revocable Trust, Plaintiffs-Appellants, v. Deborah R. LYDON, Defendant-Appellee, and Dinsmore & Shohl LLP, Defendant-Counterclaim Plaintiff/Appellee.
    NO. C-170137
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: April 27, 2018
    F. Harrison Green Co. LPA, and F. Harrison Green, Cincinnati, for Plaintiffs-Counterclaim Defendants/Appellants,
    Pinales Stachler Young Burrell & Crouse, Cincinnati, Thomas L. Stachler and Shawn M. Young, for Defendant-Appellee and Defendant-Counterclaim Plaintiff/Appellee.
    OPINION.
   Cunningham, Presiding Judge.

{¶ 1} Plaintiffs-counterclaim defendants/appellants, the sons of Hugh V. Firor, M.D., ("Dr. Firor") Thomas Firor, M.D., ("Thomas") and Randall Firor ("Randall"), in their individual and fiduciary capacities to their father's estate and trust and for their mother's trust, and David Homer, as successor trustee to Dr. Firor's revocable trust, for ease of discussion collectively referred to as "the Firors," engaged the legal services of defendant-appellee attorney Deborah R. Lydon and her law firm defendant-counterclaim plaintiff/appellee, Dinsmore & Shohl LLP, ("Dinsmore")to recover funds that Thomas and Randall's sister, Nancy Kibbee, had fraudulently taken from their father. The Firors ultimately sued Lydon and Dinsmore for legal malpractice, and Dinsmore counterclaimed for unpaid legal fees. The trial court granted Lydon and Dinsmore's motion for summary judgment on the Firors' claims and on Dinsmore's counterclaims.

{¶ 2} Because the Firors' legal-malpractice claim was barred by the statute of limitations, and because no genuine issues of material fact remain as to whether $161,423.83 in fees remain uncollected for Lydon and Dinsmore's legal services in the Kibbee litigation, we affirm the trial court's judgment.

The Kibbee Litigation

{¶ 3} Thomas and Randall sought Lydon's services based on their concerns that their sister had stolen millions of dollars from their father, which should have been distributed equally among Thomas, Randall, and Nancy upon Dr. Firor's death. Thomas and Randall learned that Nancy, with the assistance of her counsel, had applied to the Hamilton County Probate Court for relief from administration of Dr. Firor's estate, claiming that the estate was worth $6,000 and not the $1 to $3 million that Thomas and Randall claimed should have been in the estate. Thomas and Randall entered into written agreements of engagement with Lydon and Dinsmore in which they agreed to pay legal fees as billed at a blended rate of $295 per hour.

{¶ 4} Lydon's investigation revealed that Nancy had taken control of her father's personal accounts, his retirement funds, funds in the Hugh V. Firor, M.D., Revocable Trust, their late mother's trust (the Betty Bourdon Firor Revocable Trust), and other assets. Lydon was able to defend some of Dr. Firor's assets for Thomas and Randall, including defeating Nancy's requests for relief from administration and appointment as executor of her father's estate, having Thomas and Randall appointed as cotrustees of their mother's trust, and securing Homer's appointment as successor trustee of Dr. Firor's trust. Homer, a licensed attorney, is Thomas' best friend. The Firors retained Lydon and Dinsmore to represent them in their various fiduciary capacities, in addition to pursuing their litigation against Kibbee.

{¶ 5} Throughout the litigation, Thomas and Randall had told Lydon that one of their primary goals in the Kibbee litigation was to uncover the truth regarding Kibbee's alienation of them from their father during the last years of his life. Kibbee had prevented the two from seeing their father. Thomas and Randall believed that Kibbee had unduly influenced their father and had transferred most of his funds to herself while she controlled his affairs.

{¶ 6} At the outset of the litigation, Lydon had explained to the Firors the difficulties in collecting their father's lost assets. In February 2013, she told them in an email that if Kibbee had taken the funds and had "spent [them] all, and declared bankruptcy at some point, it could be hard to get back from her." Thomas and Randall nonetheless rejected potential settlements with Kibbee and opted to proceed with litigation.

{¶ 7} By mid-2013, Lydon had been successful in recovering $80,000 of their father's retirement accounts, and $55,000 that Kibbee had taken from their father's trust. In June 2013, Lydon and Dinsmore filed an action against Kibbee and her attorney in Hamilton County Common Pleas Court. Following extensive discovery and pretrial practice, in 2014, Kibbee's attorney agreed to pay the limits of her insurance coverage-$100,000-to Thomas and Randall to settle their claim. They agreed to allocate the settlement funds against the attorney fees incurred in the litigation. In connection with the settlement, the Hamilton County Probate Court approved all fees incurred by Lydon and submitted by Randall as the successor trustee of his father's trust.

{¶ 8} Over the course of the litigation, Lydon and Dinsmore conducted extensive discovery proceedings, reviewed over 40,000 documents, exchanged over 3,000 emails with their clients, and engaged in litigation in several venues. Lydon and Dinsmore achieved significant results for the Firors in taking control over their father's assets from Kibbee and in discovering proof of her theft from and undue influence over Dr. Firor. As a result of her efforts, Lydon obtained over $235,000 for the Firors, a piece of real estate valued at $7,000, access to a judgment over $43,000, a contempt judgment against Kibbee for $6,300, and access to over $6,000 for the Betty Firor trust.

{¶ 9} But Lydon and Dinsmore had also collected approximately $180,000 in fees and expenses from the Firors. In June 2014, the Firors stopped paying the regularly submitted invoices for services rendered.

{¶ 10} On July 7, 2014, the event that Lydon had warned Thomas and Randall of occurred. Kibbee filed for bankruptcy protection and received an automatic stay from any litigation filed against her. The next day, Lydon informed the Firors that the bankruptcy stay meant that Dinsmore's work on their behalf in the litigation to recover assets was essentially over. She also told the Firors that Dinsmore would not take on any additional matters unless they could bring their outstanding balances up to date.

The Firors' Claims and Dinsmore's Counterclaims

{¶ 11} On November 2, 2015, the Firors filed a verified complaint, ultimately amended, against Lydon and Dinsmore, in which they alleged that she and her firm had billed them for work in excess of an amount, not specified at the time of engagement, that they claimed they had told Lydon not to exceed. They also claimed that Lydon and Dinsmore had been negligent in failing to warn them of the difficulty of collecting Kibbee's assets, particularly if she declared bankruptcy, and in failing to keep them informed of the spiraling costs of the Kibbee litigation. The amended verified complaint was filed on December 28, 2015. Attached to the complaint was a tolling agreement signed by the parties. The agreement suspended the running of the limitations period for a period of days in mid-2015. One month later, Thomas, Randall, and Homer, in their individual and fiduciary capacities, each filed sworn verifications that the statements made in the amended verified complaint were true.

{¶ 12} Lydon and Dinsmore answered, and Dinsmore filed a counterclaim seeking $161,423.83 in unpaid legal bills. In September 2016, Lydon and Dinsmore moved for summary judgment on the Firors' claims, and Dinsmore moved for summary judgment on its counterclaims. Dinsmore's motion was ultimately supported by three affidavits submitted by Lydon, each with numerous exhibits attached, describing her actions and her communications with the Firors. Also attached to the motion was the affidavit of Victor A. Walton, an experienced Cincinnati litigation attorney. He stated that based upon his experience in the Cincinnati legal community and his review of Lydon's affidavit and attached materials, including the billing records, "and the related pleadings in the underlying litigation matters involving Kibbee," the legal fees of $350,000 were fair, reasonable, and not excessive. Having reviewed the extensive email and letter records of communications between Lydon and the Firors, Walton also stated that in his opinion Lydon had not breached any duty of communication with her clients.

{¶ 13} The Firors responded with a memorandum in opposition to the summary-judgment motion. Attached to the memorandum was a 22-page report identified as Exhibit A. The report had been prepared by the Firors' expert witness, Columbus attorney Jonathan Coughlin.

The report was signed, but was not sworn to or certified, and was incorporated into an attached affidavit. In the report, Coughlin had given his opinion about whether Lydon had breached the standard of care to her clients. That opinion was also contained in Coughlin's deposition testimony, filed with the trial court on July 20, 2016.

{¶ 14} On December 1, 2016, the trial court entered summary judgment in favor of Lydon and Dinsmore on the Firors' claims. The court stated that the Firors had failed to produce "expert testimony showing a specific duty to advise a client as to the collectability of individual defendants, [or] how [Lydon and Dinsmore] had breached that duty." The court also entered summary judgment for Dinsmore on its counterclaims for unpaid fees. The court's entry of judgment became final and appealable in March 2017, when the court fully disposed of the counterclaims. The Firors appealed.

The Firors' Legal-Malpractice Claims Are Time-Barred

{¶ 15} In their first assignment of error, the Firors allege that the trial court erred in granting summary judgment on claims raised in their amended verified complaint. They argue both that their claims against Lydon and Dinsmore were not barred by the statute of limitations, and that Lydon had breached her duty to communicate with her clients. We disagree.

{¶ 16} Although the trial court did not expressly rule on the statute-of-limitations issue when it entered summary judgment for Lydon and Dinsmore, the matter was argued to the court. In their answer, Lydon and Dinsmore had raised the affirmative defense that the Firors' claims were time-barred. Lydon and Dinsmore moved for summary judgment on a number of grounds, including that the complaint had been filed outside the statute-of-limitations period. And the Firors argued against the issue in their memorandum in opposition, responding to the statute-of-limitations argument with reference only to their amended verified complaint and to the tolling agreement attached as an exhibit to the complaint.

{¶ 17} The function of summary judgment is to determine from the evidentiary materials properly before the court whether triable factual issues exist, regardless of whether the facts of the case are complex. A court is not precluded from granting summary judgment merely because of the complexity or length of the factual record. See Gross v. Western-Southern Life Ins. Co. , 85 Ohio App.3d 662, 666-667, 621 N.E.2d 412 (1st Dist.1993).

{¶ 18} We review summary-judgment determinations de novo, without deference to the trial court's ruling. See Comer v. Risko , 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8 ; see also Capital Fin. Credit, L.L.C. v. Mays , 191 Ohio App.3d 56, 2010-Ohio-4423, 944 N.E.2d 1184, ¶ 3 (1st Dist.).

{¶ 19} A motion for summary judgment shall be granted if the court, upon viewing the inferences to be drawn from the underlying facts set forth in the pleadings, depositions, answers to interrogatories, written admissions, and affidavits in a light most favorable to the party opposing the motion, determines (1) that no genuine issue of material fact remains to be litigated, (2) that the moving party is entitled to judgment as a matter of law, and (3) that the evidence demonstrates that reasonable minds can come to but one conclusion and that conclusion is adverse to the party opposing the motion. See Civ.R. 56(C) ; see also Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996).

{¶ 20} The party moving for summary judgment "bears the initial burden of informing the trial court of the basis for the motion and of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims" or defenses. Dresher at 293, 662 N.E.2d 264. When, as here, the moving party discharges that burden, the nonmoving party then has a reciprocal burden of specificity and cannot rest on the allegations or denials in the pleadings, including verified pleadings, but must "set forth specific facts" by the means listed in the rule, showing that a triable issue of fact exists. See Id. ; see also Perkins v. 122 E. 6th St., LLC , 2017-Ohio-5592, 94 N.E.3d 207, ¶ 6 (1st Dist.). If the nonmoving party does not discharge its reciprocal burden, summary judgment, if appropriate, shall be entered against it. Dresher at 293, 662 N.E.2d 264.

{¶ 21} The substantive law governing the Firors' claims and Lydon and Dinsmore's statute-of-limitations defense identifies the factual issues that are material and whether Lydon and Dinsmore are entitled to judgment as a matter of law. See Gross , 85 Ohio App.3d at 666-667, 621 N.E.2d 412.

The Firors' Claims Sound in Legal Malpractice

{¶ 22} In their amended verified complaint, the Firors brought three claims against Lydon and Dinsmore: (1) breach of contract related to excessive billing; (2) the negligent provision of legal services and legal advice; and (3) breach of fiduciary duty. But for purposes of applying the proper statute of limitations, the cause of action is determined not from the language or form of the complaint, but from the gist-the essential ground or object-of the complaint. See Hibbett v. Cincinnati , 4 Ohio App.3d 128, 131, 446 N.E.2d 832 (1st Dist.1982) ; see also Chateau Estate Homes, LLC v. Fifth Third Bank , 1st Dist. Hamilton, 2017-Ohio-6985, 95 N.E.3d 693, ¶ 11.

{¶ 23} Here, each of the Firors' claims arose out of the manner in which they were represented by Lydon and Dinsmore within the attorney-client relationship. Thus, their claims sound in legal malpractice, despite being labeled otherwise. See Taft, Stettinius, & Hollister, LLP v. Calabrese, 2016-Ohio-4713, 69 N.E.3d 72, ¶ 13 (1st Dist.). We note that a law firm may be vicariously liable for legal malpractice only when one or more of its principals or associates are liable for legal malpractice. See Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth , 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, paragraph two of the syllabus.

{¶ 24} The determination of whether a statute of limitations bars claims often presents a mixed question of fact and law. But, as here, in the absence of genuine issues of material fact, the application of a statute of limitations presents a question of law appropriate for resolution by summary judgment. See, e.g., Calabrese at ¶ 13 ; see also Cyrus v. Henes , 89 Ohio App.3d 172, 175, 623 N.E.2d 1256 (9th Dist.1993).

A One-Year Period to Bring Legal-Malpractice Claims

{¶ 25} Since the Firors sought recovery for damages allegedly caused by legal malpractice, their claims were subject to the one-year statute-of-limitations period set forth in R.C. 2305.11(A). The Firors filed their first verified complaint and began this action on November 2, 2015. Thus, we must determine whether there are genuine issues of material fact remaining as to whether the Firors' causes of action accrued within one year of that date, or before the expiration of any extension of the statutory period effected by the tolling agreement.

{¶ 26} Under R.C. 2305.11(A), a cause of action for legal malpractice accrues and the limitations period begins to run either (1) when there is a cognizable event by which the plaintiff discovers or should discover the injury giving rise to a claim and is put on notice of the need to pursue possible remedies against the attorney; or (2) when the attorney-client relationship for that particular transaction terminates, whichever occurs later. See Zimmie v. Calfee, Halter & Griswold , 43 Ohio St.3d 54, 538 N.E.2d 398 (1989), syllabus; see also Calabrese at ¶ 18. A cognizable event is "some noteworthy event" that would alert reasonable persons that they have been damaged as a result of improper representation, such as when a client learns of an adverse decision in litigation. See Zimmie at 58, 538 N.E.2d 398 ; see also Cutcher v. Chapman , 72 Ohio App.3d 265, 267, 594 N.E.2d 640 (1st Dist.).

{¶ 27} Here, it is unrebutted that the "noteworthy event" that alerted the Firors of an alleged injury resulting from Lydon's representation occurred on July 8, 2014, the day after Kibbee filed for bankruptcy protection. The Firors argue that they were under the belief that Kibbee could not file for bankruptcy because she had already filed a similar action two years before. In their amended verified complaint, the Firors alleged that Lydon had argued this point in probate court, and that they had been injured by Lydon's failure to either properly investigate the prior bankruptcy or give them appropriate advice about the risk of a subsequent bankruptcy filing.

{¶ 28} In her first affidavit in support of summary judgment, Lydon stated that she had informed the Firors in a telephone conference on that date that Kibbee had filed for bankruptcy. Lydon explained that the automatic stay on litigation against Kibbee afforded by the bankruptcy filing meant that Lydon and Dinsmore's efforts to recover funds from Kibbee were effectively over. Thomas admitted in his deposition, an excerpt of which is attached as an exhibit to Lydon's second affidavit in support of summary judgment, that the Firors had learned of the bankruptcy filing from Lydon on July 8, 2014. Thus, under the first prong of Zimmie , no genuine issue of material fact remains as to whether, by July 8, 2014, a cognizable event, whereby the Firors had discovered the injury that gave rise to their claims, had occurred.

{¶ 29} We must next determine if, under the second prong of Zimmie , the Firors' attorney-client relationship with Lydon and Dinsmore on the Kibbee matters terminated after the July 8, 2014 cognizable event and within the prescribed period. Because an attorney-client relationship is a consensual one, the actions of either party may signal the termination of the relationship. See Trombley v. Calamunci, Joelson, Manore, Farah & Silvers, L.L.P. , 6th Dist. Lucas No. L-04-1138, 2005-Ohio-2105, 2005 WL 1009841, ¶ 44 ; see also Sandor v. Marks , 9th Dist. Summit No. 26951, 2014-Ohio-685, 2014 WL 787225, ¶ 13.

{¶ 30} On appeal, the Firors maintain that Lydon and Dinsmore's last day of representation on this matter was September 16, 2014. But this assertion is not supported by evidence cognizable under Civ.R. 56. The Firors cite only to Lydon and Dinsmore's memorandum in support of summary judgment. But a memorandum is not evidence of the kind contemplated by Civ.R. 56(C) or 56(E) and with which a party may discharge its reciprocal burden to demonstrate the existence of triable issues.

{¶ 31} The memorandum does mention September 16. But the date is referenced only as the date of a draft letter from Thomas to Dinsmore's managing partner. That letter was, in turn, described in an email prepared by Thomas, and that email was attached as an exhibit to Lydon's first affidavit in support of summary judgment. But in that email, Thomas acknowledged that Lydon had withdrawn from representation in the Kibbee case on July 8, 2014, and had instructed them to get another attorney if they wished to pursue the bankruptcy matter.

{¶ 32} Thomas also admitted in his deposition, an excerpt of which is attached as an exhibit to Lydon's second affidavit in support of summary judgment, that the Firors had considered Lydon's representation terminated in July 2014. And four days after Thomas had sent his email to his brother and to Homer, stating his belief that Lydon had withdrawn from representation on July 8, 2014, the Firors discussed consulting another attorney.

{¶ 33} While substantial evidence supports the contention that the Firors believed that Lydon and Dinsmore had terminated their representation for the Kibbee matter in July 2014, Lydon maintained, in her first affidavit, that July 22, 2014, was "the last date for which services were rendered by Dinsmore and billed to [the Firors], other than the Estate [representation]." Thus, construing the facts most strongly in favor of the Firors, the nonmoving party, there is no genuine issue of material fact remaining as to whether the attorney-client relationship for the Kibbee matters terminated on July 22, 2014.

{¶ 34} While Dinsmore's representation of the Firors in the administration of the estate continued until September 15, 2014, under the second prong of Zimmie , the statute of limitations begins to run "when the attorney-client relationship for * * * [this] particular transaction or undertaking terminates." (Emphasis added.) Zimmie , 43 Ohio St.3d at 58, 538 N.E.2d 398. Here, as stated in the amended verified complaint, the basis of the Firors' claims is Lydon's and Dinsmore's alleged negligence committed, not in the administration of the probate estate, but in efforts to find and recover the unaccounted-for funds transferred to Kibbee while she controlled the affairs of Dr. Firor. Even construing the facts most strongly in favor of the Firors, the administration of the estate is not the same transaction or undertaking as that challenged in the Firors' action.

{¶ 35} Thus, there is no genuine issue of material fact remaining as to whether the Firors' cause of action accrued on July 22, 2014, the later of the dates memorializing a cognizable event and the termination of the attorney-client relationship.

The Tolling Agreement

{¶ 36} Nonetheless, the Firors argue that even if they should have filed their lawsuit before July 22, 2015,-one year after the date of accrual-the tolling agreement suspended the running of the limitations period for their malpractice claims. Without elaboration, the Firors argue that under the tolling agreement, their claim was filed within the extended statutory period. We disagree.

{¶ 37} The tolling agreement was entered into by the parties to effect their "desire to toll any statute of limitations, to allow the parties to investigate and to negotiate an amicably [sic] resolution of any disputes either of them may have with the other." The agreement, attached as an exhibit to the amended verified complaint, was signed by all the parties. It provided, in pertinent part, that:

If not terminated earlier by notice, this Agreement shall terminate on September 30, 2015 (the "Termination Date"). The period from the date this Agreement is entered into through September 30, 2015, shall not be included in determining the applicability of any statute of limitations in any action involving the Parties. The running of any period relevant to any applicable statute of limitations that may be applicable to any claims shall re-commence running on the day after the Termination Date.

The effective date of the tolling agreement was July 9, 2015.

{¶ 38} Absent the agreement, the one-year statutory period for the Firors to bring their malpractice claims would have expired on July 22, 2015. On the effective date of the agreement, 13 days remained in that period. Once the tolling agreement expired on September 30, 2015, "[t]he running" of the statutory period "re-commence[d]," and the Firors had 13 more days, or until October 13, 2015, in which to bring their claims. It is clear from our record that the Firors brought their claims on November 2, 2015,-some 33 days after the statutory period recommenced running and 20 days outside the statutory period as extended by the tolling agreement.

{¶ 39} There remains no genuine issue of material fact as to whether the Firors sought recovery for damages allegedly caused by Lydon's and Dinsmore's legal malpractice outside of the statute-of-limitations period as extended by the tolling agreement. And Lydon and Dinsmore are entitled to judgment as a matter of law on the Firors' malpractice claims. Therefore, the trial court did not err in entering summary judgment on those claims. See Civ.R. 56(C) ; see also R.C. 2305.11(A). The first assignment of error is overruled.

Dinsmore's Counterclaims for Unpaid Fees

{¶ 40} In two assignments of error, the Firors challenge the trial court's entry of summary judgment on Dinsmore's counterclaims for uncollected legal fees against the counterclaim-defendants Randall, individually and as the executor of his father's estate; Thomas; and Homer, as successor trustee of Dr. Firor's trust.

{¶ 41} Civ.R. 56(A) makes summary judgment available to a party seeking to recover upon its own claims or counterclaims. See Mays , 191 Ohio App.3d 56, 2010-Ohio-4423, 944 N.E.2d 1184, at ¶ 4. Where a party seeks affirmative relief on its own counterclaims as a matter of law, it bears the burden of affirmatively demonstrating that there are no genuine issues of material fact with respect to every essential element of its claims. See Dresher , 75 Ohio St.3d at 294, 662 N.E.2d 264 ; see also Mays at ¶ 5. And its motion for summary judgment must be denied if the party fails to satisfy this initial burden. The nonmoving party's reciprocal burden to establish the existence of genuine issues of material fact by evidence cognizable under Civ.R. 56 arises only if the movant meets its initial burden. See Mays at ¶ 5.

{¶ 42} When, as here, the party moving for summary judgment discharges its initial burden to identify the absence of genuine issues of material fact on an essential element of the nonmoving party's claim, the nonmoving parties then have reciprocal burdens of specificity and cannot rest on the allegations or denials in the pleadings, but must set forth specific facts, by the means listed in Civ.R. 56(C) and 56(E), demonstrating that triable issues of fact exist. See Civ.R. 56 ; see also Dresher at 293, 662 N.E.2d 264.

{¶ 43} To prevail on its counterclaims for fees, Dinsmore was required to establish the existence of a contract for fees, performance on its part, breach of a duty to perform by the counterclaim defendants, and its own damage or loss. See Brunsman v. W. Hills Country Club , 151 Ohio App.3d 718, 2003-Ohio-891, 785 N.E.2d 794, ¶ 11 (1st Dist.).

{¶ 44} In their second assignment of error, the counterclaim defendants argue that the parties never had a written or an oral contract for legal fees. Yet, in their amended verified complaint, the counterclaim defendants admitted that they had "engaged" Dinsmore to recover funds from Kibbee, that Lydon's alleged malpractice had occurred "during the course of representation," and that Dinsmore had "collected" approximately $180,000 in fees from them. Moreover, in Lydon's second affidavit in support of summary judgment, she stated that she had attended the depositions of Thomas, Randall, and Homer. She properly attached to her affidavit excerpts of their deposition transcripts in which each acknowledged the existence of written letters of engagement with Dinsmore. There is no genuine issue of material fact remaining as to the existence of contracts for legal services. The second assignment of error is overruled.

{¶ 45} In their third assignment of error, the counterclaim defendants allege that the trial court erred by failing "to review the reasonableness, necessity and benefit" of Dinsmore's legal services. First, they argue that Dinsmore has not met its burden to provide a detailed report "on hours spent and the nature of the effort expended," particularly to support Dinsmore's claim for quantum meruit. Next, they argue, without citation to any authority, that because Lydon had failed to communicate with her clients regarding the mounting fees, Dinsmore was not entitled to collect fees.

{¶ 46} These arguments must also fail. Dinsmore supported its motion for summary judgment on its counterclaims with Walton's and Lydon's affidavits. These affidavits clearly identified the existence of written contracts of engagement that provided that Dinsmore was to be paid on an hourly basis for legal services performed, that Dinsmore performed the work, that it regularly billed the counterclaim defendants for the work performed, and that $161,423.83 remained unpaid. In his affidavit, Walton stated that he had reviewed the litigation and the attached billing records for the "underlying litigation matters involving Kibbee." He concluded that the fees charged were fair, reasonable, and not excessive. He also stated that Lydon had not breached any duty of communication with her clients.

{¶ 47} Dinsmore thus discharged its initial burden to identify the absence of genuine issues of material fact on the essential elements of its counterclaims and triggered the counterclaim defendants' reciprocal burden of specificity under Civ.R. 56(E). The counterclaim defendants have failed to discharge their burden.

{¶ 48} The only evidence cognizable under Civ.R. 56 offered to rebut Dinsmore's summary-judgment motion was Coughlin's deposition testimony and the statements made by the counterclaim defendants in their amended verified complaint.

{¶ 49} At one point in their appellate brief, the counterclaim defendants refer to the report prepared by Coughlin, submitted as Exhibit A to their memorandum in opposition. The signed, undated report was not sworn to, certified, or incorporated into an attached affidavit filed in the trial court and thus was not the type of evidentiary material contemplated under Civ.R. 56(C) or 56(E). See State ex rel. The V Cos. v. Marshall , 81 Ohio St.3d 467, 473, 692 N.E.2d 198 (1998). "Other types of documents may be introduced as evidentiary material only through incorporation by reference in a properly framed affidavit. Documents that have not been sworn, certified, or authenticated by way of affidavit 'have no evidentiary value.' " Mitchell v. Internatl. Flavors & Fragrances, Inc. , 179 Ohio App.3d 365, 2008-Ohio-3697, 902 N.E.2d 37, ¶ 17 (1st Dist.).

{¶ 50} A court may consider evidence other than that specifically listed in Civ.R. 56 only when there is no objection to that evidence. See Marshall at 473, 692 N.E.2d 198 ; see also Cincinnati Ins. Co. v. Schwerha , 7th Dist. Mahoning No. 04 MA 257, 2006-Ohio-3521, 2006 WL 1868321, ¶ 12 ; compare Loukinas v. Roto-Rooter Servs. Co. , 167 Ohio App.3d 559, 2006-Ohio-3172, 855 N.E.2d 1272, ¶ 22 (1st Dist.) (holding that a court may consider evidence other than that listed in Civ.R. 56 when there is no objection). Here, Dinsmore, in a motion in limine and its reply memorandum in support of summary judgment, expressly objected to the use of the report as a basis for resolving summary judgment.

{¶ 51} In advancing their third assignment of error, the counterclaim defendants cite to the report only as evidence that Lydon had breached a duty to her clients. That evidence was otherwise properly before the trial court in Coughlin's filed deposition testimony.

{¶ 52} In that deposition testimony, Coughlin stated that he had no opinion on the measure of damages due to Dinsmore because he had "not been retained to testify about damages." He admitted that he had reviewed only a small portion of the billing records, and that he hadn't reviewed any billing records for the work performed for Dr. Firor's trust. While he stated that Lydon had breached the standard of care due her clients "by virtue of the excessive fees," he admitted that he had reached his opinion without having reviewed litigation records that filled an additional "40 bankers boxes." He admitted that he had seen no written evidence that supported the allegation that Lydon and the Firors had an understanding that she was not to incur fees in an unspecified amount "beyond their initial disclosure of funds available for the prosecution of the claims," as stated in the amended verified complaint. He admitted that he had based his opinion that Lydon had failed to communicate sufficiently with her clients largely upon the statements of his clients in the amended verified complaint. And he acknowledged that his opinion could change if those statements "were not correct."

{¶ 53} We note that the Ohio Supreme Court has stated that, generally, sworn pleadings like a verified complaint "constitute evidence" for some purposes under Civ.R. 56. State ex rel. Spencer v. East Liverpool Planning Comm. , 80 Ohio St.3d 297, 298, 685 N.E.2d 1251 (1997) (holding that the nonmoving party's reciprocal duty to respond with additional evidence to set forth specific facts as per Civ.R. 56(E) was not triggered when the defendant, in moving for summary judgment, had failed to satisfy its initial burden under Civ.R. 56 by setting forth evidence countering the allegations made in the plaintiff's verified complaint). Yet where a party moving for summary judgment has sufficiently rebutted the allegations made in a verified complaint, the nonmoving party still bears a reciprocal burden to respond with additional evidence, setting forth specific facts under Civ.R. 56(E) to counter the movant's supported claim that no genuine issue remains for trial. See Miller v. Blume , 7th Dist. Noble No. 13 NO 398, 2013-Ohio-5290, 2013 WL 6252767, ¶ 29-30. Under those conditions, an assertion in a pleading, even a sworn one, is insufficient to meet the reciprocal burden of a nonmoving party under Civ.R. 56(E). Id. at ¶ 30. Moreover, averments in a verified complaint may be accepted as evidence only to the extent that, like an affidavit, they present evidence within the personal knowledge of the affiant. See Brunner Firm Co., L.P.A. v. Bussard, 10th Dist. Franklin No. 07AP-867, 2008-Ohio-4684, 2008 WL 4233877, ¶ 14.

{¶ 54} Here, Dinsmore has rebutted the allegations made in the verified complaint, largely through the deposition testimony of the counterclaim defendants found as attachments to Lydon's affidavits. Homer admitted in his deposition that he had not read the amended complaint before signing the verification stating that statements in the complaint were "true to the best of my knowledge." Each counterclaim defendant's deposition testimony contradicts his earlier allegations in the complaint, relied upon by Coughlin in reaching his conclusions, that Lydon had exceeded a limit of fees that they had imposed and had failed to adequately communicate with them regarding the fees expended. Thomas admitted that Lydon had explained that the fees incurred would vary based upon how aggressively they wished to pursue the Kibbee funds, and that she had spelled out the various factors which could increase the overall costs of the litigation. He stated that he had had conversations with Lydon "throughout the entire process" of the litigation over the costs, and that he had never raised an objection with Lydon about the regular invoices submitted for payment. Moreover, he admitted that the Firors had never set a limit on litigation costs to be incurred in the Kibbee matters, and that he had not communicated a limit to Lydon. Homer made similar statements in his deposition, including that Dinsmore had sent regular invoices, and that there were sufficient funds in Dr. Firor's trust that he could have used to pay Dinsmore's invoices. Randall's deposition testimony echoed that of his brother and Homer.

{¶ 55} The counterclaim defendants did not supplement their own testimony or that of Coughlin in response to Lydon's and Walton's affidavits. In light of the counterclaim defendants' deposition testimony, we hold that their assertions in the amended verified complaint were insufficient to meet the reciprocal burden of a nonmoving party under Civ.R. 56(E). See Civ.R. 56 ; see also Dresher at 293, 75 Ohio St.3d 280, 662 N.E.2d 264 ; Miller , 7th Dist. Noble No. 13 NO 398, 2013-Ohio-5290, at ¶ 30. The trial court did not err in entering summary judgment on Dinsmore's counterclaims for uncollected fees. The third assignment of error is overruled.

{¶ 56} Accordingly, we affirm the trial court's entry of summary judgment for Lydon and Dinsmore.

Judgment affirmed.

Miller and Deters, JJ., concur.

      The Firors' mother's trust and its cotrustees, Randall and Thomas, are not counterclaim defendants.