[Cite as Winona Holdings, Inc. v. Duffey, 2014-Ohio-519.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Winona Holdings, Inc., : 

 Plaintiff-Appellee, : 

 No. 13AP-471 

v. : (M.C. No. 2009 CVF 52504)

Eli J. Duffey, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on February 13, 2014 

 

Pope Law Offices, LLC, and Gregory S. Pope, for appellee. 

Rachel K. Robinson, for appellant. 

 

APPEAL from the Franklin County Municipal Court 

SADLER, P.J. 

{¶ 1} Defendant-appellant, Eli J. Duffey, appeals from the judgment of the 

Franklin County Municipal Court denying his R.C. 2307.61(B) motion for attorney fees. 

For the following reasons, we affirm the judgment of the trial court. 

I. BACKGROUND 

{¶ 2} On December 9, 2009, plaintiff-appellee, Winona Holdings, Inc., filed a 

complaint against appellant in the Franklin County Municipal Court. The complaint 

alleged that, in 2006, appellant presented Budget Car Sales ("Budget") with a $2,600 

check that was later dishonored for insufficient funds. Appellee, claiming to be the 

assignee of Budget, demanded judgment in the amount of $8,135.28 pursuant to R.C. 

2307.60(A)(1) and 2307.61(A)(1) and (2). In the alternative, appellee sought $2,600 in 

damages under R.C. 1303.54. 
No. 13AP-471 2 

{¶ 3} On March 3, 2010, appellee filed a motion for default judgment, and on 

March 17, 2010, the trial court granted appellee's motion for default judgment and 

awarded appellee $8,135.28 for the dishonored check. Appellant filed a motion for relief 

from judgment pursuant to Civ.R. 60(B). The trial court denied appellant's motion and 

appellant, on October 22, 2010, appealed the trial court's decision. On appeal, we 

reversed the decision of the trial court and remanded the matter for further proceedings. 

Winona Holdings, Inc. v. Duffey, 10th Dist. No. 10AP-1006, 2011-Ohio-3163. 

{¶ 4} Subsequent to this matter being remanded to the trial court, on 

February 14, 2013, appellee filed a notice of voluntary dismissal without prejudice 

pursuant to Civ.R. 41(A). Thereafter, on March 15, 2013, appellant filed a motion for 

attorney fees as the prevailing party pursuant to R.C. 2307.61. Appellant argued that 

appellee's voluntary dismissal did not divest the trial court of jurisdiction to consider his 

motion and that "[i]n addition to prevailing in his appeal, [appellant] prevailed on the 

merits of [appellee's] Ohio Civil Theft Act claim in that this claim may never be re-filed." 

(Mar. 15, 2013 Motion, 5.) According to appellant, appellee's complaint was filed after the 

applicable statute of limitations. 

{¶ 5} In response, appellee argued "it is clear that this Court does not have a 

prevailing party nor the jurisdiction to grant [appellant's] motion." (Mar. 29, 2013 

Plaintiff Winona Holdings, Inc.'s Reply to Defendant Eli J. Duffey's Motion for Attorney 

Fees and Request for Sanctions, 1.) Appellant filed a reply. In denying appellant's motion 

for attorney fees, pursuant to R.C. 2307.61, the trial court determined it lacked 

jurisdiction because appellant "has not prevailed and attorney's fees are not a collateral 

matter under the operation of this statute" and, further, "[e]ven if the Court did have 

jurisdiction to consider the issue of attorney's fees under R.C. 2307.61, [appellee] 

voluntarily dismissed the case without prejudice." (May 6, 2013 Decision and Entry, 4.) 

This appeal followed. 

II. ASSIGNMENTS OF ERROR 

{¶ 6} Appellant brings the following assignments of error for our review. 

[I.] THE TRIAL COURT ERRED AS A MATTER OF LAW IN 

FINDING THAT APPELLANT'S MOTION FOR ATTORNEY 

FEES WAS NOT A COLLATERAL MATTER TO THE 

MERITS OF APPELLEE'S OHIO CIVIL THEFT ACT CLAIM. 
No. 13AP-471 3 

[II.] THE TRIAL COURT ERRED AS A MATTER OF LAW IN 

FINDING THAT APPELLANT DID NOT PREVAIL IN HIS 

DEFENSE OF APPELLEE'S OHIO CIVIL THEFT ACT 

CLAIM. 

III. DISCUSSION 

{¶ 7} For ease of discussion, we address appellant's assignments of error out of 

order. In appellant's second assignment of error, he argues "[t]he trial court's holding 

contravenes the purposes of fee-shifting provisions," and "[t]he trial court erred in not 

concluding that pursuant to the text of R.C. § 2307.61(B), Appellant prevailed in his 

defense of Appellee's [Ohio Civil Theft Act] claim." (Appellant's brief, 18, 21.) 

{¶ 8} R.C. 2307.61(B) provides, in relevant part: 

If a property owner * * * brings a civil action pursuant to 

division (A) of section 2307.60 of the Revised Code to recover 

damages for willful damage to property or for a theft offense 

* * * and if the defendant prevails in the civil action, the 

defendant may recover * * * reasonable attorney's fees, the 

cost of defending the civil action, and any compensatory 

damages that may be proven. 

(Emphasis added.) 

{¶ 9} As such, pursuant to R.C. 2307.61(B), a defendant cannot be awarded 

attorney fees unless they are the prevailing party. Black's Law Dictionary 1232 (9th 

Ed.2009) defines "prevailing party" as "[a] party in whose favor a judgment is rendered." 

We have previously stated, a "prevailing party" generally is the party in whose favor the 

verdict or decision is rendered and judgment entered. Hikmet v. Turkoglu, 10th Dist. No. 

08AP-1021, 2009-Ohio-6477, ¶ 74. "The concept of 'prevailing party' is important 

because a voluntary dismissal without prejudice in Ohio means that there has been no 

adjudication on the merits. Further, without an adjudication on the merits, no formal 

'prevailing party' exists." Miami Valley Hosp. v. Payson, 2d Dist. No. 18736 (Dec. 7, 

2001) ("Payson II"), citing Sturm v. Sturm, 63 Ohio St.3d 671, 675 (1992). Thus, "[a] 

prevailing party does not exist when a claim is voluntarily dismissed." Hansel v. Creative 

Concrete & Masonry Constr. Co., 148 Ohio App.3d 53, 60 (10th Dist.2002). 

{¶ 10} We first address appellant's assertion that, as a matter of policy, "[t]he trial 

court's holding contravenes the purposes of fee-shifting provisions." (Appellant's brief, 
No. 13AP-471 4 

18.) Appellant, without citation, asserts R.C. 2307.61(B) is a fee-shifting provision whose 

"purpose * * * is to provide a remedy to an aggrieved person and to deter unlawful or 

unwarranted conduct." (Appellant's brief, 18.) 

{¶ 11} Even assuming arguendo that appellant has correctly identified the 

intended legislative intent behind R.C. 2307.61(B), the record is bereft of any evidence 

that appellee's claim under R.C. 2307.61(B) was "unlawful or unwarranted." (Appellant's 

brief, 18). Thus, we cannot find that the trial court's holding "contravene[d] the purpose" 

of R.C. 2307.61(B). 

{¶ 12} We next turn our attention to appellant's argument that "[t]he trial court 

erred in not concluding that pursuant to the text of R.C. § 2307.61(B), Appellant prevailed 

in his defense of Appellee's [Ohio Civil Theft Act] claim." (Appellant's brief, 21.) 

Appellant asserts, pursuant to the decision of the Second District Court of Appeals in 

Miami Valley Hosp. v. Payson, 2d Dist. No. 17830 (Dec. 17, 1999) ("Payson I"), that, 

although "[a]ppellee voluntarily dismissed its [Ohio Civil Theft Act] claim[,] * * * [l]ike the 

Second District, this Court should * * * consider the merits of [appellant's] statute of 

limitations defense." (Appellant's brief, 25.) In response, appellee relies upon a 

subsequent decision in the same line of cases, Payson II, for the proposition that "[w]here 

a claim was filed and dismissed, there can be no prevailing party." (Appellee's brief, 32.) 

We address Payson I and Payson II in turn. 

{¶ 13} In Payson I, third-party defendant Guardian filed a motion to dismiss the 

Paysons' third-party complaint and, in the same motion, sought recovery of its reasonable 

attorney fees and expenses incurred in defending against the third-party complaint 

pursuant to the provisions contained in the Employee Retirement Income Security Act 

("ERISA"). Subsequently, pursuant to Civ.R. 41(A)(1), the Paysons voluntarily dismissed 

their third-party complaint against Guardian without prejudice. The trial court 

determined that the Paysons' voluntary dismissal of their claim did not divest the trial 

court of jurisdiction to consider Guardian's claim for attorney fees. Thereafter, the trial 

court scheduled a hearing on the issue of attorney fees. In response, the Paysons filed a 

petition for a writ of prohibition in the Second District Court of Appeals. They argued that 

the trial court lacked jurisdiction to consider Guardian's request for attorney fees, 

pursuant to ERISA, because the request is not a collateral matter under Ohio law, but, 
No. 13AP-471 5 

instead, would require the trial court to determine whether Guardian prevailed on the 

merits of the ERISA claim. 

{¶ 14} In considering the Paysons' petition, the Payson I court recognized 

generally "that '[a] voluntary dismissal under Civ.R. 41(A)(1) deprives the trial court of 

jurisdiction over the matter dismissed. * * * However, a request for sanctions under Civ.R. 

11 is not part of the matter dismissed; it is a demand for relief that is collateral to the 

claims of the parties and the adjudication of those claims.' " Id., quoting State ex rel. 

Gaier Co. v. Kessler, 97 Ohio App.3d 782, 784-85 (2d Dist.1994). The Payson I court 

reiterated the language of 29 U.S.C. 1132(g)(1) of ERISA, which states: " 'in any action 

under this title * * * by a participant, beneficiary, or fiduciary, the court in its discretion 

may allow a reasonable attorney's fee and costs of action to either party.' " Id. In rejecting 

the Paysons' petition, the Payson I court concluded, "[w]e are not persuaded that a 

voluntary dismissal of an action deprives a trial court of its jurisdiction to hear a claim for 

attorney fees simply because the basis of that claim is found in the ERISA statute, rather 

than in Civ.R. 11 or R.C. 2323.51" and determined that "a claim for attorney fees remains 

collateral to the main action, regardless of the statute or rule that authorizes the 

prosecution of such a claim." Id. 

{¶ 15} Thereafter, the matter was remanded to the trial court for the magistrate to 

make a finding regarding the appropriate award of attorney fees. The trial court affirmed 

the magistrate's decision which awarded third-party defendant, Guardian, attorney fees. 

The Paysons timely appealed from the trial court's decision. In Payson II, the Second 

District noted an exception to its prior generalization from Payson I that all claims for 

attorney fees are collateral claims independent of the merits of the claim. The Payson II 

court stated: 

The concept of "prevailing party" is important because a 

voluntary dismissal without prejudice in Ohio means there 

has been no adjudication on the merits. * * * Further, without 

an adjudication on the merits, no formal "prevailing party" 

exists. * * * Consequently, Guardian's ability to recover 

attorney fees depends on whether the statute authorizing fees 

requires an applicant to be a prevailing party. 
No. 13AP-471 6 

Id. The Payson II court went on to state that, "unlike other fee-shifting statutes * * *, the 

term 'prevailing party' is 'conspicuously absent' from [ERISA]." Id.

{¶ 16} We find the Payson line of cases distinguishable from the present case. 

Unlike the ERISA statute at issue there, R.C. 2307.61(B) requires a party to prevail as a 

prerequisite to the award of attorney fees. Here, appellant asserts the trial court 

incorrectly determined that he was not a prevailing party. 

{¶ 17} In determining the interpretation of "prevail" in the context of R.C. 

2307.61(B), we find our decision in Hansel instructive. In Hansel, relevant to this appeal, 

the plaintiffs filed a claim alleging that the defendant violated the Ohio Consumer Sales 

Practice Act, as memorialized in R.C. 1345.09. However, prior to trial, the plaintiffs 

voluntarily dismissed their R.C. 1345.09 claim. Thereafter, the defendant "filed a motion 

for attorney fees pursuant to R.C. 1345.09(F)(1), which authorizes, in certain 

circumstances, an attorney fees award to the prevailing party." (Emphasis added.) Id. at 

55. The trial court denied the defendant's motion for attorney fees, and on appeal, we 

concluded the defendant "was not entitled to attorney fees under R.C. 1345.09(F)(1) 

because there was no [R.C. 1345.09] claim, and thus no prevailing party, once such claim 

was voluntarily dismissed." Id. at 60. As such, we held, "[a] prevailing party does not 

exist when a claim is voluntarily dismissed." Id.

{¶ 18} Appellant contends Hansel is contrary to the Sixth Circuit Court of Appeals' 

holding in Pavlovich v. Natl. City Bank, 461 F.3d 832 (6th Cir.2006), and urges us not to 

follow Hansel and asserts Pavlovich should govern this case. In Pavlovich, the plaintiff 

asserted multiple claims, two of which were brought pursuant to "Ohio's applicable civil 

RICO statute, [R.C. 2923.34(H)]." Id. at 834. The plaintiff subsequently amended her 

complaint to voluntarily withdraw the two RICO claims. Five other claims remained. The 

defendant filed for summary judgment on the remaining claims and the trial court 

granted summary judgment on those claims, but also deemed the two previously 

withdrawn RICO claims to be barred by the doctrine of res judicata for purposes of future 

litigation. Pursuant to the Ohio RICO statute, a prevailing party may be awarded attorney 

fees. Thereafter, the defendant filed for attorney fees as the prevailing party, and the trial 

court "concluded that the [defendant] was a prevailing party within the meaning of the 
No. 13AP-471 7 

statute" and awarded attorney fees to the defendant. Id. at 836. Plaintiff appealed the 

trial court's award of attorney fees. 

{¶ 19} On appeal, the plaintiff in Pavlovich argued that, because the Ohio RICO 

claim was dismissed without prejudice and, therefore, did not constitute an adjudication 

on the merits, the defendant could not be considered a prevailing party. The Sixth Circuit 

disagreed and held the trial court's decision was an adjudication on the merits, and, 

therefore, the defendant was a prevailing party as contemplated by the Ohio RICO statute. 

{¶ 20} Having examined the facts of both Hansel and Pavlovich, we find the 

instant case in accord with Hansel and distinguishable from Pavlovich. Here, as in 

Hansel, appellee voluntarily dismissed his claims without prejudice prior to the issuance 

of any judgment by the trial court on the merits of his claims.1 Thus, consistent with 

Hansel, appellant cannot be considered a prevailing party, as contemplated in R.C. 

2307.61(B). Because R.C. 2307.61(B) requires a party prevail on the merits before 

attorney fees may be awarded and we have determined no prevailing party exists in this 

case, we find the trial court did not err in denying appellant's R.C. 2307.61(B) motion for 

attorney fees.

{¶ 21} Accordingly, appellant's second assignment of error is overruled. 

{¶ 22} Our disposition of appellant's second assignment of error renders 

appellant's first assignment of error moot. 

IV. CONCLUSION 

{¶ 23} For the foregoing reasons, appellant's second assignment of error is 

overruled, and appellant's first assignment of error is rendered moot. The judgment of 

the Franklin County Municipal Court is affirmed. 

Judgment affirmed.

DORRIAN and O'GRADY, JJ., concur. 

_____________________________ 

 

1 Based on a federal judgment issued in his favor, appellant asks this court to hold that he is a prevailing 

party under the doctrine of res judicata. On review of the record, appellant did not raise the affirmative 

defense of res judicata below. Thus, even if the record supported appellant's assertion that there is a federal 

judgment which effects this case, which we are not declaring it does, we will not consider such argument for 

the first time on appeal. Chase Home Fin., LLC v. Mustafa, 10th Dist. No. 11AP-846, 2012-Ohio-3764, ¶ 13.