[Cite as Gauthier v. Gauthier, 2018-Ohio-4970.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

FORREST GAUTHIER, 

 Plaintiff-Appellant/CrossAppellee, 

 vs. 

SU KANG GAUTHIER, 

 and 

ROBERT A. KLINGLER, 

 Defendants-Appellees/CrossAppellants. 

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APPEAL NOS. C-170387

 C-170398 

TRIAL NO. A-1303244 

 O P I N I O N.

 

Civil Appeals From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: December 12, 2018 

Thomas E. Grossmann, for Plaintiff-Appellant/Cross-Appellee, 

Robert A. Klingler Co., L.P.A., and Robert A. Klingler, for DefendantsAppellees/Cross-Appellants. 
OHIO FIRST DISTRICT COURT OF APPEALS 

2

MYERS, Judge. 

{¶1} This is an appeal from the trial court’s award of attorney fees and 

costs in favor of defendants-appellees/cross-appellants Su Kang Gauthier (“Su”) and 

Robert A. Klingler. Su and Klingler had sought fees under two separate theories: 

that plaintiff-appellant/cross-appellee Forrest Gauthier (“Forrest”) and his counsel 

had engaged in frivolous conduct under R.C. 2323.51 by filing the underlying lawsuit, 

and that Su was entitled to fees under a prior addendum agreement executed by the 

parties. The court awarded Su and Klingler approximately $96,000 after 

determining that Forrest and his counsel had engaged in frivolous conduct under 

R.C. 2323.51, but it determined that it did not have jurisdiction to award fees under 

the addendum agreement. 

{¶2} In six assignments of error, Forrest argues that the trial court erred in 

determining that he and his counsel had engaged in frivolous conduct, the trial court 

erred in awarding fees and costs, the trial court abused its discretion in determining 

the reasonableness of fees, the trial court erred in not transferring the case to the 

Warren County Court of Common Pleas pursuant to the jurisdictional-priority rule, 

the trial court erred in its evidentiary and procedural rulings, and the trial court 

erred by sanctioning Forrest because Su was guilty of “unclean hands.” 

{¶3} In a cross-appeal, Su and Klingler argue that the trial court erred in 

determining that it did not have jurisdiction to award fees pursuant to the parties’ 

addendum agreement. 

{¶4} Because we find that the trial court erred in determining that Forrest 

and his counsel had engaged in frivolous conduct, and also erred in determining that 

it did not have jurisdiction to award fees pursuant to the parties’ addendum 

agreement, we reverse the trial court’s judgment and remand this action for further 

proceedings consistent with this opinion. 
OHIO FIRST DISTRICT COURT OF APPEALS 

3 

Factual and Procedural Background 

{¶5} In 2009, the Warren County Domestic Relations Court granted a 

divorce to Su and Forrest. Incorporated into the divorce decree was a “Full Text 

Separation Agreement,” which included a personal-property agreement dividing the 

parties’ personal property. In 2010, the parties entered into an addendum 

agreement to resolve further issues that had arisen regarding division of their assets. 

Among other things, this addendum agreement governed the disposition of an IRS 

refund check and the division of tax penalty reserves. 

{¶6} Since the divorce decree was entered, relations between Su and Forrest 

have been contentious and litigious. In 2009, Forrest filed a contempt action against 

Su in the Warren County Court of Domestic Relations, arguing that she had failed to 

return certain items of his property pursuant to the personal-property agreement. In 

February 2013, Su filed suit against Forrest in the Warren County Court of Domestic 

Relations, but her case was later transferred to the Warren County Court of Common 

Pleas. Su’s complaint alleged that Forrest had violated the parties’ 2010 addendum 

agreement by failing to pay her 50 percent of the parties’ tax penalty reserve that he 

had held back from the IRS. Forrest filed a motion to dismiss Su’s complaint, and in 

April 2013, he filed this underlying action against Su and Klingler in the Hamilton 

County Court of Common Pleas. 

{¶7} Forrest’s complaint alleged that Su had converted property that he was 

entitled to under the personal-property agreement that had been incorporated into 

the divorce decree, and that she had breached that agreement by not complying with 

its terms regarding the return of his property. He claimed she had possession of 

property that was his and refused to return it. He further alleged that Su had 

breached the parties’ addendum agreement by negotiating an IRS refund check in 

contravention of the terms of the agreement. With respect to this IRS refund check, 

the agreement provided that Su was entitled to 50 percent of the parties’ tax refund 
OHIO FIRST DISTRICT COURT OF APPEALS 

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from certain specified years. If Su received a refund check, she was to cosign it and 

return it to Forrest. He would then deposit the entire amount and distribute to Su 

her 50 percent interest. When Su received the refund check, issues arose with the 

bank verifying her signature and approving her endorsement. To address these 

issues, Klingler emailed Forrest’s counsel and explained that, rather than sending the 

check to Forrest, Su would deposit the proceeds and send Forrest his share. Klingler 

asked Forrest’s counsel to let him know of any objections to this treatment of the 

check. When no response was received, Su deposited the check and sent Forrest his 

share. Forrest was out of the country when his share was sent to him, and a lengthy 

period of time elapsed before Forrest obtained his share of the refund check. He had 

not yet obtained his share at the time that the complaint was filed. 

{¶8} As to Klingler, Forrest alleged that he had breached an agreement 

concerning Su’s negotiation of the IRS refund check and that, as a result, Klingler 

had converted Forrest’s refund proceeds. 

{¶9} The trial court granted summary judgment to Su and Klingler on all 

claims. Forrest appealed, and this court affirmed the trial court’s grant of summary 

judgment. We held that Forrest’s claims against Su that related to the personalproperty agreement were barred by claim preclusion and the jurisdictional-priority 

rule, because they arose out of the same transaction or occurrence that was the 

subject matter of the contempt action in Warren County. With respect to the 

remaining claims against Su and Klingler concerning breach of the addendum 

agreement and negotiation of the tax refund check, we held that after viewing the 

evidence in the light most favorable to Forrest, reasonable minds could only find in 

favor of Su and Klingler on those claims. We thus upheld the granting of summary 

judgment on the merits of these addendum-agreement claims. 

{¶10} After this court’s affirmance of the trial court’s grant of summary 

judgment, Su and Klingler filed a motion for an award of attorney fees and costs, 

alleging frivolous conduct under R.C. 2323.51. Su also sought an award of fees and 
OHIO FIRST DISTRICT COURT OF APPEALS 

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costs pursuant to the parties’ 2010 addendum agreement, which provided that “[t]he 

prevailing party to any action or proceeding brought to enforce any term of this 

Agreement shall be entitled to recover all reasonable costs and attorneys fees arising 

out [of] or related to the enforcement action or proceeding.” 

{¶11} Following a hearing, the trial court issued an entry granting Su and 

Klingler’s motion and awarding them approximately $96,000 in fees and costs, 

which encompassed the total amount of fees and costs incurred in defending all 

claims raised in Forrest’s complaint. The court found that Forrest and his counsel’s 

conduct in filing the underlying action was frivolous pursuant to R.C. 2323.51, and it 

awarded fees and costs on that basis. But it found that it did not have jurisdiction to 

enforce the addendum agreement because “this case was disposed as a matter of law 

under the jurisdictional priority rule.” 

{¶12} Both Forrest and Su and Klingler appealed the trial court’s ruling. 

Forrest’s Appeal 

A. R.C. 2323.51 

{¶13} In his first assignment of error, Forrest argues that the trial court erred 

in finding that he and his counsel acted frivolously in filing the underlying lawsuit in 

Hamilton County. 

{¶14} R.C. 2323.51(B)(1) provides that any party to a civil action adversely 

affected by another party’s frivolous conduct may file a motion for an award of court 

costs, reasonable attorney’s fees, and other reasonable expenses incurred in 

connection with the action. Pursuant to R.C. 2323.51, the conduct of a party to a civil 

action will be considered frivolous where: 

(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. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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(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. 

R.C. 2323.51(A)(2)(a); see Pitcher v. Waldman, 1st Dist. Hamilton No. C-160245, 

2016-Ohio-5491, ¶ 14. 

{¶15} This court’s standard of review depends on whether the appeal 

involves questions of law or questions of fact. Pitcher at ¶ 16. Where purely legal 

questions are involved, this court conducts a de novo review. Id. But on factual 

issues, we defer to the trial court’s factual determinations if they are supported by 

competent, credible evidence. Id. 

{¶16} In their motion for an award of fees and costs, Su and Klingler argued 

that Forrest and his counsel had engaged in frivolous conduct pursuant to R.C. 

2323.51(A)(2)(a)(ii) because their conduct “was not warranted under existing law, 

[could not] be supported by a good faith argument for an extension, modification, or 

reversal of existing law, or [could not] be supported by a good faith argument for the 

establishment of new law.” They specifically contended that Forrest’s claims 

concerning the personal-property agreement were frivolous because they had 

previously been asserted in the contempt action before the Warren County Court of 

Domestic Relations and were ultimately barred by res judicata. They further 

contended that Forrest’s claims under the addendum agreement were frivolous, 
OHIO FIRST DISTRICT COURT OF APPEALS 

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because even if the procedure for depositing the check was not followed, Forrest’s 

refusal to pick up the IRS refund check after it was delivered to him and his failure to 

make any effort to obtain his share of the refund check rendered those claims 

frivolous. 

{¶17} In finding that the conduct of Forrest and his counsel was frivolous, 

the trial court held that “[n]o reasonable attorney would file an action in the General 

Division of the Hamilton County Court of Common Pleas on the question of division 

of marital property after litigating the same nucleus of operative facts in the 

Domestic Relations Division of the Warren County Court of Common Pleas.” The 

court did not specifically address whether the claims under the addendum agreement 

were frivolous, but it awarded Su and Klingler all requested fees and costs. 

{¶18} Because the trial court’s determination that the conduct of Forrest and 

his counsel was frivolous pursuant to R.C. 2323.51(A)(2)(a)(ii) involves a legal 

analysis, we conduct a de novo review. Stremmel v. Demmery, 2d Dist. Miami No. 

2016-CA-18, 2017-Ohio-5500, ¶ 21, citing Breen v. Total Quality Logistics, 10th Dist. 

Franklin No. 16AP-3, 2017-Ohio-439, ¶ 11. 

1. Personal-Property Claims 

{¶19} We first consider whether Forrest and his counsel acted frivolously in 

asserting the claims under the personal-property agreement that were later found by 

this court to be barred by claim preclusion and the jurisdictional-priority rule. The 

test to determine whether an asserted claim is frivolous “is whether no reasonable 

lawyer would have brought the action in light of existing law.” See Pitcher, 1st Dist. 

Hamilton No. C-160245, 2016-Ohio-5491, at ¶ 15. 

{¶20} The Eighth District Court of Appeals has held that “after an action has 

been fully litigated in the Domestic Relations Court and a judgment entry has been 

filed granting a divorce and providing for the division of property, the exclusive 

jurisdiction [of the Domestic Relations Court] is terminated. At that point, there 
OHIO FIRST DISTRICT COURT OF APPEALS 

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exist[s] concurrent jurisdiction with the Common Pleas Court, General Division.” 

Price v. Price, 16 Ohio App.3d 93, 95-96, 474 N.E.2d 662 (8th Dist.1984). 

{¶21} While Forrest’s claims under the personal-property agreement were 

ultimately found to be barred by claim preclusion and the jurisdictional-priority rule, 

in light of the existing case law on the concurrent jurisdiction between domestic 

relations courts and general division common pleas courts after the issuance of a 

divorce decree, the Hamilton County Court of Common Pleas arguably had 

jurisdiction over the property claims. Therefore, we cannot conclude that the actions 

of Forrest and his counsel were not warranted under existing law. See R.C. 

2323.51(A)(2)(a)(ii). 

{¶22} In further support of his conduct, Forrest contends that he filed this 

action in the Hamilton County Court of Common Pleas because he sought an award 

of damages that could not be issued by a domestic relations court. This argument is 

likewise supported by existing law. See Gibson v. Gibson, 87 Ohio App.3d 426, 431, 

622 N.E.2d 425 (4th Dist.1993) (holding that domestic relations courts “have, by 

statute, full equitable powers and jurisdiction appropriate to the determination of all 

domestic relations matters,” but that these powers do not include the authority to 

enter a judgment for damages). 

{¶23} We cannot conclude that no reasonable lawyer would have filed the 

personal-property claims, which, after a decree of divorce was granted, sought an 

award of damages on claims for breach of contract and conversion regarding 

separation of the parties’ personal property, in a court of common pleas rather than a 

domestic relations court. See Pitcher, 1st Dist. Hamilton No. C-160245, 2016-Ohio5491, at ¶ 15. 

{¶24} The trial court erred in concluding that Forrest and his counsel had 

acted frivolously in filing the personal-property claims in Hamilton County. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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2. Addendum-Agreement Claims 

{¶25} We now consider whether Forrest and his counsel acted frivolously in 

filing the claims concerning the parties’ addendum agreement. Su and Klingler were 

granted summary judgment on the addendum-agreement claims and this court 

affirmed that ruling after a de novo review. 

{¶26} As the Supreme Court of Ohio has previously stated, frivolous conduct 

“must involve egregious conduct. Frivolous conduct is not proved merely by winning 

a legal battle or by proving that a party’s factual assertions were incorrect.” State ex 

rel. DiFranco v. S. Euclid, 144 Ohio St.3d 571, 2015-Ohio-4915, 45 N.E.3d 987, ¶ 15. 

The fact that Forrest lost on the merits of his addendum-agreement claims does not 

mean that he acted frivolously in filing them. While Forrest’s actions in refusing to 

accept delivery of his share of the IRS refund check may have factored into the 

ultimate resolution of the claims against him, his conduct did not render the filing of 

the claims frivolous. At the time of filing, Forrest had not received the proceeds and 

there was a good-faith argument for filing the claims under existing law. We hold 

that the actions of Forrest and his counsel in asserting claims under the addendum 

agreement were not frivolous. See R.C. 2323.51(A)(2)(a)(ii). 

{¶27} We therefore conclude that the trial court erred in finding that Forrest 

and his counsel had acted frivolously under R.C. 2323.51 and in awarding fees and 

costs on that basis. Forrest’s first assignment of error is sustained. 

{¶28} Our resolution of this assignment of error renders moot Forrest’s 

second, third, fifth, and sixth assignments of error, and we do not address them. 

B. Jurisdictional Priority 

{¶29} In his fourth assignment of error, Forrest argues that the trial court 

erred in not transferring the case to the Warren County Court of Common Pleas 

pursuant to the jurisdictional-priority rule. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶30} Prior to the hearing on Su and Klingler’s motion for an award of fees 

and costs, Forrest filed a motion to dismiss the entire action for lack of subjectmatter jurisdiction. His motion contended that the court “must dismiss this matter 

in its entirety, and vacate all judgment entries and orders entered because this Court 

does not possess subject-matter jurisdiction.” He specifically asserted that 

jurisdictional priority of his claims had vested in the Warren County Court of 

Common Pleas when Su filed her complaint asserting her own claims under the 

addendum agreement. He argued that his addendum-agreement claims were 

compulsory counterclaims to Su’s, and that because Su’s case was filed first, the 

entire Hamilton County action must be dismissed. The trial court denied Forrest’s 

motion. 

{¶31} Under the jurisdictional-priority rule, “when there are courts with 

concurrent jurisdiction, the court whose powers are first invoked through the 

initiation of an appropriate legal action acquires jurisdiction to the exclusion of all 

other courts to adjudicate the issues and to settle the rights of the parties.” Zhao v. 

Zeng, 1st Dist. Hamilton No. C-020131, 2003-Ohio-3060, ¶ 13. Generally, the rule 

only applies when the claims and parties are the same in both cases. State ex rel. 

Dunlap v. Sarko, 135 Ohio St.3d 171, 2013-Ohio-67, 985 N.E.2d 450, ¶ 10. When the 

cases involve different claims or parties, the rule can still apply if the actions are part 

of the same “whole issue.” Id. at ¶ 11; Triton Servs., Inc. v. Reed, 12th Dist. Butler 

Nos. CA2016-04-028 and CA2016-08-068, 2016-Ohio-7838, ¶ 8. Two cases will be 

considered part of the same “whole issue” where the cases are pending in courts of 

concurrent jurisdiction and involve substantially the same parties, and “the ruling of 

the court subsequently acquiring jurisdiction may affect or interfere with the 

resolution of the issues before the court where suit was originally commenced.” 

Triton Servs., Inc. at ¶ 9, quoting Michaels Bldg. Co. v. Cardinal Fed. S. & L. 

Bank, 54 Ohio App.3d 180, 183, 561 N.E.2d 1015 (8th Dist.1988). 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶32} Here, Forrest’s action in Hamilton County contained an additional 

party that was not part of the action in Warren County, namely Klingler. And 

following our review of the record, we cannot find that the two causes of action are 

part of the same “whole issue.” We therefore conclude that the trial court did not err 

in failing to transfer the case to Warren County or in failing to dismiss the case 

pursuant to the jurisdictional-priority rule. 

{¶33} Forrest’s fourth assignment of error is overruled. 

Su and Klingler’s Cross-Appeal 

{¶34} In their sole assignment of error, Su and Klingler argue that the trial 

court erred in determining that it did not have jurisdiction to award attorney fees 

pursuant to the addendum agreement. We agree. 

{¶35} The trial court held that it did not have jurisdiction to enforce the 

terms of the addendum agreement because “this case was disposed as a matter of law 

under the jurisdictional priority rule.” The trial court’s statement was incorrect. 

While Forrest’s claims pertaining to the personal-property agreement were disposed 

of under the jurisdictional-priority rule, the addendum-agreement claims were 

disposed of on their merits by a grant of summary judgment to Su and Klingler. 

{¶36} Su and Klingler sought attorney fees under paragraph eight to the 

addendum agreement, which provides that “[t]he prevailing party to any action or 

proceeding brought to enforce any term of this Agreement shall be entitled to recover 

all reasonable costs and attorneys fees arising out [of] or related to the enforcement 

action or proceeding.” Just as it had jurisdiction to rule on the merits of the 

addendum-agreement claims, the trial court had jurisdiction to interpret paragraph 

eight of the agreement and to award fees if it determined that a party was entitled to 

them. 

{¶37} Su and Klingler’s assignment of error is sustained. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Conclusion 

{¶38} Because the trial court erred in determining that the conduct of 

Forrest and his counsel in filing the underlying action was frivolous under R.C. 

2323.51, and in determining that it did not have jurisdiction to award fees under the 

addendum agreement, we reverse the trial court’s judgment. 

{¶39} This cause is remanded for the trial court to determine whether the 

addendum agreement entitled Su to attorney fees and costs incurred defending the 

addendum-agreement claims, and if so, to determine the amount the amount of fees 

and costs to which Su is entitled and to issue an award accordingly. 

Judgment reversed and cause remanded. 

MOCK, P.J., and ZAYAS, J., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.