[Cite as Hancock Cty. Treasurer v. Barger, 2023-Ohio-1707.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

HANCOCK COUNTY

J. STEVE WELTON, HANCOCK 

COUNTY TREASURER,

 PLAINTIFF-APPELLEE, CASE NO. 5-22-30

 v.

ANNE M. BARGER,

 DEFENDANT-APPELLANT,

 -andCHRISTINA MURYN AS MAYOR, O P I N I O N

CITY OF FINDLAY, ET AL.,

 THIRD-PARTY DEFENDANTS-

 APPELLEES.

Appeal from Hancock County Common Pleas Court

Trial Court No. 2019 F 00338

Judgment Affirmed

Date of Decision: May 22, 2023

APPEARANCES:

G Q Buck Vaile for Appellant

Robert E. Feighner, Jr. for Appellee City of Findlay
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WILLAMOWSKI, J. 

{¶1} Defendant-appellant Anne M. Barger (“Barger”) brings this appeal 

from the judgment of the Court of Common Pleas of Hancock County denying her 

motion for attorney fees. Barger claims on appeal that she should have been granted 

an award of attorney fees. For the reasons set forth below, the judgment is affirmed.

{¶2} This case arises out of Barger’s failure to pay assessments added to her 

real estate taxes for the City of Findlay cutting her grass. On September 9, 2019, 

the plaintiff-appellant J. Steve Welton (“Welton”), acting in his capacity as Hancock 

County Treasurer, filed a complaint for foreclosure on the real estate owned by 

Barger. Service of the complaint was unsuccessful and the county prosecutor was 

notified of such. On October 15, 2019, an amended complaint for foreclosure was 

filed and service was sent via ordinary mail. Barger filed an answer to the complaint 

on February 27, 2020. Barger also filed a third party complaint against the City of 

Findlay (“City”). Barger eventually claimed that the City had failed to properly 

serve her regarding the City’s intent to mow the grass as required by Ordinance 

521.07. Since Barger did not reside within the Findlay City limits, the notice was 

required to be sent via certified mail, or through publication if the address is 

unknown. R.C. 731.05. Barger’s primary argument was that the City did not 

comply with the statutory service requirements. Barger argued that the failure to 
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properly serve her notice prevented the City from charging her for the mowing of 

the grass and subsequently adding it to her tax bill. 

{¶3} On February 10, 2022, a consent judgment entry was filed indicating 

that Barger, Welton, and the City had reached a settlement. Per the agreement, the 

special assessments resulting from the cost of mowing Barger’s property which the 

City added to Barger’s real estate taxes were removed. The entry reserved Barger’s 

right to request attorney fees from the City. Finally, the entry granted an order of 

foreclosure to Welton for the remainder of the outstanding taxes owed. Barger then 

filed a motion for a hearing regarding the award of attorney fees. The trial court 

held a hearing on attorney fees on April 29, 2022. Subsequently, the trial court 

entered judgment on May 10, 2022, denying the request for attorney fees on the 

grounds that there was no authority to support Barger’s claim that she was entitled 

to attorney fees so she could only recover if the City’s actions imposing the special 

assessments and continuing the suit were frivolous. The trial court determined the 

record did not support a finding of frivolous conduct. Barger appealed from that 

judgment and on appeal raised the following assignments of error.

First Assignment of Error

The [trial court] ruled incorrectly when it denied [Barger] an 

award of attorney fees because the city’s actions were by 

definition frivolous.
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Second Assignment of Error

The [trial court] incorrectly denied [Barger] an award of attorney 

fees because the City maintained the lawsuit violating [Barger’s] 

due process for more than two years after being notified of their 

deficiency in service.

Third Assignment of Error

The [trial court] failed to provide attorney fees even though the 

parties specifically reserved the right of [Barger] to request these 

fees in the consent judgment entry.

Fourth Assignment of Error

The [trial court] erred when it failed to award [Barger] attorney 

fees, which action was inequitable and unjust.

Fifth Assignment of Error

The [trial court] ruled improperly, in that public policy in this 

case favors the award of attorney fees to avoid a very significant 

chilling effect.

As all of the assignments of error argue that the trial court erred by failing to award 

attorney fees, we will address them together.

{¶4} When addressing the claim for attorney fees, the first step is to 

determine whether a party is entitled to recover attorney fees. Once a party

establishes that an award of attorney fees is appropriate, the court then determines

if the fees requested are reasonable. In general, Ohio follows the American rule, 

which does not permit a prevailing party to recover attorney fees. Cruz v. English 

Nanny & Governess School, 169 Ohio St.3d 716 2022-Ohio-3586, 207 N.E.3d 742. 

There are three well-established exceptions to this rule: 1) a statutory duty to pay 
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attorney fees; 2) a party has acted in bad faith; and 3) a contractual duty to pay 

attorney fees. Id. at ¶ 36. In this case, there is no specific statutory duty to pay 

attorney fees. Thus, that exception does not apply.

{¶5} The second exception to the American rule is Barger’s claim that the 

City acted in bad faith. Barger argues that the city acted in bad faith by engaging in 

frivolous conduct. R.C. 2323.51 sets forth when an award of attorney fees may be 

made as a sanction for frivolous conduct. 

(2) “Frivolous conduct” means either of the following:

(a) Conduct of an inmate or other party to a civil action, of an inmate 

who has filed an appeal of the type described in division (A)(1)(b) of 

this section, or of the inmate's or other party's counsel of record that 

satisfies any of the following:

(i) It obviously serves merely to harass or maliciously injure another 

party to the civil action or appeal or is for another improper purpose, 

including, but not limited to, causing unnecessary delay or a needless 

increase in the cost of litigation.

(ii) It is not warranted under existing law, cannot be supported by a 

good faith argument for an extension, modification, or reversal of 

existing law, or cannot be supported by a good faith argument for the 

establishment of new law.

(iii) The conduct consists of allegations or other factual contentions 

that have no evidentiary support or, if specifically so identified, are 

not likely to have evidentiary support after a reasonable opportunity 

for further investigation or discovery.

(iv) The conduct consists of denials or factual contentions that are not 

warranted by the evidence or, if specifically so identified, are not 

reasonably based on a lack of information or belief.
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(b) An inmate's commencement of a civil action or appeal against a 

government entity or employee when any of the following applies:

(i) The claim that is the basis of the civil action fails to state a claim 

or the issues of law that are the basis of the appeal fail to state any 

issues of law.

(ii) It is clear that the inmate cannot prove material facts in support of 

the claim that is the basis of the civil action or in support of the issues 

of law that are the basis of the appeal.

(iii) The claim that is the basis of the civil action is substantially 

similar to a claim in a previous civil action commenced by the inmate 

or the issues of law that are the basis of the appeal are substantially 

similar to issues of law raised in a previous appeal commenced by the 

inmate, in that the claim that is the basis of the current civil action or 

the issues of law that are the basis of the current appeal involve the 

same parties or arise from the same operative facts as the claim or 

issues of law in the previous civil action or appeal.

R.C. 2323.51(A)(2). A party adversely affected by frivolous conduct may file a 

motion for an award of reasonable attorney fees. R.C. 2323.51(B)(1). If the trial 

court finds that the opposing party engaged in frivolous conduct, it may award 

attorney fees to the moving party. Id.

When the question regarding what constitutes frivolous conduct calls 

for a legal determination, such as whether a claim is warranted under 

existing law, an appellate court is to review the frivolous conduct 

determination de novo, without deference to the trial court's decision.

* * *

“In contrast, if there is no disputed issue of law and the question is 

factual, we apply an abuse of discretion standard of review.” * * * 

Likewise, if the trial court determines that a violation under R.C. 

2323.51 or Civ.R. 11 exists, the trial court's imposition of sanctions 

for said violation will not be disturbed absent an abuse of discretion. 

(Citation omitted).
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Reddy v. Singh, 3d Dist. Marion No. 9-14-29, 2015-Ohio-1180, ¶ 67-68. “In 

determining whether a claim itself is frivolous under the statute, the test is whether 

no reasonable lawyer would have brought the action in light of the existing law.” 

Id. at ¶ 71.

{¶6} In this case, Barger alleges that the City’s frivolous conduct was not 

admitting the failure of service earlier and requiring her to extend her suit. Barger 

claims that the City should have known it did not perfect service when it had no 

record of certified mail or of publication. Barger also claims that the two and a half 

year delay between the filing of the third party complaint and the time when the City 

conceded the lack of service caused unnecessary delay and a needless increase in 

the cost of litigation. A review of the record shows that at the hearing, the City’s 

attorney gave a professional statement that for the majority of the case, the City was 

under the impression that a certified mail document had been sent to Barger. Once 

the City realized it had no evidence in the record of proper service, the City agreed 

to the consent entry removing the fees from Barger’s real estate taxes. 

{¶7} The question before the trial court in this case is not a legal one, but 

rather a factual one: Did the City unnecessarily delay the proceedings? Since it is 

a factual question, the standard of review is abuse of discretion. The professional 

statement of the City’s counsel showed that the City did not act for the improper 

purpose of causing unnecessary delay, but rather because the City had a good faith 

belief that it had properly served Barger with notice of the need to mow her property. 
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As the trial court’s determination that the City did not engage in frivolous conduct 

is supported by some competent, credible evidence in the record, this Court does 

not find it to be an abuse of discretion.

{¶8} Barger also argues that there was a contractual agreement in the consent 

entry for the City to pay her attorney fees. This claim is based upon the language 

of the entry, which permitted Barger to request a hearing on attorney fees. However, 

the specific language does not guarantee attorney fees, but instead states as follows.

Within Sixty (60) days of the filing of this Consent Judgment Entry, 

[Barger] may file a request for an award of attorney fees expended in 

the defense of this action relative to the Three thousand Three hundred 

Eight and 28/100 Dollars ($3,380.28) [sic] that is to be removed from 

the tax duplicate, and is not owed by the Defendant property owner 

personally to the City, nor shall it be a lien upon the real property. If 

such a request is filed, a convenient time for a hearing before the Court 

shall be determined by the Court in conjunction with counsel for the 

parties.

Doc. 51 at 3. The consent entry does not agree that an attorney fee award will be 

granted, only that Barger may request a hearing on the issue. Thus there is no 

contractual agreement for the City to pay attorney fees.

{¶9} Having determined that no exception to the American rule is present in 

this case, Barger is not entitled to an award of attorney fees. For this reason, the 

assignments of error are overruled.
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{¶10} Having found no error prejudicial to the Appellant in the particulars 

assigned and argued, the judgment of the Court of Common Pleas of Hancock 

County is affirmed.

Judgment Affirmed

WALDICK and ZIMMERMAN, J.J., concur.

/hls