[Cite as Mann v. Resolution T Co., L.L.C. , 2014-Ohio-2451.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY DENNIS RAY MANN, et al. Plaintiffs-Appellants

v. RESOLUTION T COMPANY, LLC Defendant-Appellee

Appellate Case No. 2014-CA-5

Trial Court Ca se No. 13-471

(Civil Appeal from ( Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 6th day of June, 2014.

. . . . . . . . . . . STEPHEN E. KLEIN, Atty. Reg. No. 0014351, 240 Bohanan Drive, Vandalia, Ohio 45377 Attorney for Plaintiffs-Appellants DANIEL A. DEMARCO, Atty. Reg. No. 0038920, PH ILLIP G. ECKENRODE, Atty. Reg. No. 0084187, 65 East State Street, Suite 1400, Columbus, Ohio 43215 Attorneys for Defendant-Appellee

. . . . . . . . . . . . . WELBAUM, J. {¶ 1} In this case, Plaintiffs-Appellant s, Dennis and Karen Mann (“the Manns”) appeal from a judgment denying their moti on for summary judgment and granting the 2

 cross-motion for summary judgment of Defe ndant-Appellee, Resolution T Company, LLC (“Resolution”). The Manns contend that the trial court erred in overruling their motion for summary judgment. In support of this proposition, the Manns make three arguments: (1) that the foreclosure decree in a prior case between the parties was not a final a ppealable order; (2) a pre-judgment taking of their sale proceeds in the foreclosure case pursuant to a contract claim for attorney fees violates public policy and R. C. 1319.02; and (3) that they are entitled to compensatory damages based on their slander of title claim. {¶ 2} We conclude that the trial court did not err in rendering summary judgment on Resolution’s behalf regarding the claims that challenge attorney fees paid to Resolution in connection with a prior sale of the Manns’ pr operty. The foreclosure decree was a final appealable order, and issues rela ting to attorney fees should have been raised in the foreclosure action, by way of appeal or a Civ.R. 60(B) mo tion for relief from judgment. These claims, therefore, are barred by res judicata. {¶ 3} We further conclude that the trial c ourt erred in rendering summary judgment on Resolution’s behalf with respect to the claim for slander of title. There are genuine issues of material fact concerning the slander of title claim, and whether Resolution acted in bad faith by refusing to remove a lien on the Manns’ property until after the Manns filed an action for slander of title. Accordingly, the judgment of the trial court will be affirmed in part, reversed in part, and remanded for further proceedings.

I. Facts and Course of Proceedings {¶ 4} This case has a complicated procedural history, as it has sp anned three separate 3

 actions filed in the Miami C ounty Court of Common Pleas. The three cases arose from a cognovit note and mortgage signed by the Manns in 2003. In April of 2003, Dennis Mann signed a cognovit note, agreeing to pay Fifth Third Bank (“Fifth”) the sum of $65,000 by April 17, 2008. The note allowed any attorney, upon defau lt, to appear on beha lf of Dennis Mann and confess judgment in favor of Fifth. The note fu rther agreed that Mann would pay attorney fees for the attorney taking these actions. {¶ 5} On the same day, the Manns signed an open-end mortgage and security agreement giving Fifth a security interest in property owned by the Manns, in order to secure payment of the note. Article 5 of the mortga ge agreement provided for remedies upon default, including acceleration and foreclosure. Article 5.3 of the agreement further stated that:

There shall be allowed and included as additional indebt edness secured by the lien of the Mortgage, to the extent permitted by law, all expenditures and expenses of Mortgagee for attorney fees, court costs, appraisers’ fees, sheriff’s fees, documentary and expert evidence, stenographers’ charges, publication costs and such other costs and expenses as Mortgagee may deem reasonably necessary to exercise any remedies or to evidence to bidders at any sale of the Property the true condition of the title to or the value of the Property. All such expenditures and expenses shall bear interest at a fl oating rate per annum equal to six percent (6%) in excess of the Prime Rate of Fi fth Third Bank then in effect, and such interest shall be paid by Mortgago r upon demand by Mortgagee and shall be

additional indebtedness s ecured by this Mortgage. Doc. #7, Defendant’s Memorandum in Opposition to Plaintiffs ’ Motion for Summary Judgment and 4

 Defendant’s Cross-Motion for Summary J udgment, Affidavit of Roger Kendrick, ¶ 4, and Ex. 2 attached to the Kendrick Affidavit, p. 9. {¶ 6} In September 2009, Fifth assigned th e note and mortgage to Resolution. Subsequently, in July 2011, Resolution obtained judgment against the Manns on the cognovit note in Miami County Common Pleas Court Case No. 11-469 (“Cognovit Case”). The trial court did not order attorney fees to be paid, but ordered judgme nt in the amount still owing on the note, which was $56,394.44. The court also included court costs. In December 2011, Resolution attempted to execute on the Manns ’ personal property, and court co sts were designated in the praecipe as $248.66. Although a hearing was schedule d, it was not held due to uncertainty about

whether the Manns had been served. Resoluti on filed another praecipe in February 2012, again listing the total costs as $248.66. {¶ 7} After the Manns filed a motion for a hearing on the execution, the trial court held a hearing in March 2012, but took the matte r under advisement becau se the parties were attempting to resolve the matter. Apparently , the parties were unable to do so, because

Resolution then filed a foreclosure action seekin g to foreclose on two parcels of property owned by the Manns. This action was designated as Miami County Common Pleas Court Case No. 12-465 (“Foreclosure Case”), and wa s assigned to a different judg e than the one who had handled the Cognovit Case. {¶ 8} On November 6, 2012, Resolution file d a motion for default and summary judgment in the Foreclosure Case, and the tr ial court granted a “Judgment Entry Decree of Foreclosure” on December 12, 2012. The c ourt stated in the decree that: As of July 11, 2011, pursuant to the Note , there is justly due and owing to 5

 Plaintiff [Resolution] the total unpaid prin cipal balance of the Note, in an amount not less than $56,394.44, plus: (1) attorneys’ fees, costs and charges incurred in the collection or enforcement thereof; and (2) all other amounts and charges due and owing under the Note (the “Note Ba lance”). Doc. #11, Certified Copy of Judgment Entry Decree of Foreclosure, p. 3. {¶ 9} The court, therefore, ordered the prope rty foreclosed and sold, and held that Resolution was entitled to an amount up to and incl uding the note balance, as the second order of priority, after payment of amounts owed to th e Miami County Treasurer. In addition, the court

stated that: It is further ORDERED, ADJUDGED, and DECREED that there may be due to Plaintiff [Resolution] additional su ms advanced by it under the terms of the Loan Documents to pay real estate taxe s, insurance premiums , property protection, and attorneys’ fees, which sums are to be determined by further Order and paid as a “Third Party” priority as provided hereinabove. Id. at p. 3. {¶ 10} No appeal was taken from the foreclosur e order, and a foreclosure sale was set for February 27, 2012. The minimum bid at the sa le was to be $50,000. Prior to the time the foreclosure order was filed, the Manns contracted with Kenneth Hatton, a licensed real estate broker, to find a buyer for the property. {¶ 11} The foreclosed property was used by the Manns to access a larger parcel of farmed land, and the foreclosure would mean that the Manns would lose access to this larger parcel. Dennis Mann was told by his attorney th at he could avoid forecl osure if he could pay $60,000 to Resolution before the sheriff’s sale. Although the Manns were unable to obtain a 6

 loan for that amount, their realtor, Hatton, had obtained a buyer for the property by February 15, 2013. The buyer was willing to pay $100,000 for the pr operty, and was also willing to grant the Manns access across the premises to their other 130-acre parcel. {¶ 12} On February 26, 2013, the Manns’ attorney told Hatton that the sheriff’s sale had been postponed until April 17, 2013, and that the buyer’s identity had been disclosed to the trial attorney for Resolution. Hatton then contacted the attorn ey for Resolution, who provided a pay-off amount for principal and interest of $68,809.05 through April 5, 2013 (the anticipated closing date), plus an additional $16,247.36 for attorn ey fees and expenses/costs. Thus, the total needed to pay off Resolution was $85,056.41. {¶ 13} The letter from the attorney for Resolution stated that “Once we are in receipt of the funds, we will take steps to dismiss the fo reclosure action and rel ease the mortgage and judgment liens.” Plaintiff’s Motion for Summary Judgment, Doc. # 5, Kenneth Hatton Affidavit, ¶ 13, and Ex. B attached to the Hatton Affidavit, p. 1. {¶ 14} Resolution then increased its pa yoff demand to $91,314.90, which included an increase of $6,528.49 allegedly owed for attorney fees , expenses, and costs. Due to Resolution’s increased demand, the sale was closed in escr ow on April 5, 2013, and Ha tton then negotiated a deal in which Resolution accepted $88,000 for its claim, which included $19,190.95 in funds

above the amount owed for the note balance. Of the $100,000 paid for the property, the Manns received nothing. {¶ 15} As a result of the payment, Resolution released its lien on the acreage that was the subject of the Foreclosure Case. However, Resolution did not release its lien on the Manns’ 130-acre parcel. 7

 {¶ 16} In May 2013, the Manns filed a motion in the Cognovit Case, asking for leave to file a supplemental pleading. On J une 5, 2013, the court denied the motion. 1 The court indicated that it did not award attorney fees in the Cognovit Case and was unaware that the Foreclosure Case had been pending in another court. The court concluded that it lacked jurisdiction over the motion, because the Cognovit Case judgment was a final appealable order. In addition, the court conc luded that the motion could not be considered as a Civ.R. 60(B) motion for relief from judgment because it did not comply with pleading requirements for such a motion. {¶ 17} On June 24, 2013, the Manns’ attorney sent Resolution’s attorney a letter rejecting Resolution’s demand for a release of claims by the Manns in exchange for Resolution’s provision of a satisfaction of j udgment entry and a release of the existing judgment lien on the 130 acre parcel (which was not part of the For eclosure Case). Plaintiff’s Motion for Summary Judgment, Doc. #5, Faith Morter Affidavit, ¶ 5-7, and Ex. B attached to the Morter Affidavit, p. 1. Resolution did not respond to this letter. {¶ 18} On September 6, 2013, the Manns filed the present action against Resolution, seeking a declaratory judgment that Resolution’ s judgment had been satisfied and that the judgment lien should be released of record. The Manns also included claims for slander of title regarding Resolution’s failure to release the lien, and three other claims relating to the attorney fees that had been paid to Resolution. Speci fically, the Manns included claims for abuse of process, for “money had and received,” and unj ust enrichment. After Resolution filed an answer, the Manns filed a motion for summary judgment. Resolution then filed a cross-motion

1 The content of the supplemental pleading is not disclosed in the record. Based on the court’s comments in the entry, we assume the supplemental pleading would have challenged the attorney fees paid to Resolution. 8

 for summary judgment. {¶ 19} In January 2014, the trial court file d a judgment entry overruling the Manns’ motion for summary judgment and granting Resolution’s cross-motion for summary judgment. The trial court noted that the declaratory judgment request was moot, because Resolution had removed its judgment lien from the Cognovit Ca se on September 9, 2013. Further, the court concluded that there was no proof of special damages or bad faith, because Resolution’s judgment lien was never “false”; the Manns owed the money on the judgment in the Cognovit Case. The trial court also held that the abuse of process and equitable claims regarding the attorney fees were unfounded. The court held that the attorney fee issue should have been addressed in the Foreclosure Case, and that ther e was no abuse of process because the trial court in that case held that Resolution was entitled to attorney fees. The court thus concluded that under either waiver or res judicata, th e equitable claims would be barred. {¶ 20} The Manns appeal from the judgment overruling their motion for summary judgment and granting Resolution’s cross-motion for summary judgment.

Did the Trial Court Err in Overruling the Manns’ Motion for Summary Judgment? {¶ 21} The Manns’ First Assignment of Error states that: The Trial Court Erred in Overruling Plaintiff-Appellants’ Summary Judgment Motion for the Reason that, as a Matter of Law, (A) The Foreclosure

Decree in Case No. 12-466 Is Not a Final Appealable Order. {¶ 22} Under this assignment of error, the Manns contend that the trial court erred in 9

 concluding that its equitable cl aims were barred either by res judicata or waiver, based on the Manns’ failure to appeal from the foreclosure or der in the Foreclosure Case. The Manns argue that they were not required to appeal from the foreclosure order because it was not a final appealable order. In this rega rd, the Manns rely on the fact that the foreclosure order failed to specify the dollar amount of attorney fees. {¶ 23} The Manns begin their argument by obs erving that the trial court failed to

discuss the fact that Resolution filed what purported to be a volunt ary dismissal of the Foreclosure Case in April 2013. According to the Manns, the dismissal was a nullity because

the decree of foreclosure had al ready been filed. As support fo r this proposition, the Manns cite Countrywide Home Loans Servicing v. Nichpor , 136 Ohio St.3d 55, 2013-Ohio-2083, 990 N.E.2d

565. In Nichpor , the Supreme Court of Ohio held that “[a]fter a judgment entry grants a decree of foreclosure and order of sale, the foreclos ure action cannot be dis missed pursuant to Civ.R. 41(A)(1)(a), because that rule pertains only to the voluntary dismissal of a pending case.” Id. at syllabus. In this regard, the court reasoned that the foreclosure judgment was a final judgment, and the remaining matters in the case were administrative matters that aided execution of the judgment. Id . at ¶ 5-6. {¶ 24} We cannot address this pa rticular argument because th e order of dismissal in the

Foreclosure Case is not contained in the record before us, and we have no idea what it said. For the same reason, the trial court di d not err in failing to discuss this matter. We do note that under Civ.R. 41(A)(1), voluntary di smissals are typically wit hout prejudice, and generally contemplate the filing of another action. In cont rast, where a foreclosure judgment or any other judgment, for that matter, has been satisfied by payment of the obligation, the dismissal should be 10

 with prejudice to a new action. {¶ 25} The Manns next argue that the foreclosure judgment was not final because the

trial court in the Foreclosure Case failed to set forth the am ount of damages. Instead, the foreclosure order simply stated that sums for a dditional items, including attorney fees, “may” be due, and that the sums for these items would be determined in a further order that would also establish their priority. According to the Manns, this lack caused the for eclosure order not to be final. This in turn, would mean that the forecl osure order would not have a res judicata effect.

{¶ 26} “A foreclosure action is a two-step proce ss, the first part of which ends with the judgment and decree of foreclosure, which is a fi nal appealable order. * * * The second part of the process involves the sale of the property, cu lminating in a confirmation of sale and dispersal of the proceeds.” Fifth Third Bank v. Dayton Lodge Ltd. Liab. Co. , 2d Dist. Montgomery No. 24843, 2012-Ohio-3387, ¶ 18, citing Mid-State Trust IX v. Davis , 2d Dist. Champaign No. 07-CA-31, 2008-Ohio-1985, ¶ 23-25. In Nichpor , the Supreme Court of Oh io stressed that after the foreclosure order, all that remains are “administrative matters finalizing the result of the sheriff's sale and giving the mortgagors the oppor tunity to exercise their equitable right of redemption. These actions can be classified as proceedings to ai d in execution of the judgment.”

Nichpor at ¶ 6. The court also noted that debtors may immediately appeal foreclosure orders, and that the “ ‘second phase of the proceedings is viewed as a separate a nd distinct action seeking

enforcement of an order of sale and decree of foreclosure.’ ” Id ., quoting Triple F Invests. v. Pacific Fin. Serv., Inc. , 11th Dist. Portage No. 2000-P-0090, 2001 WL 589343, *3 (June 2, 2001). (Other c itation omitted.) 11

 {¶ 27} We have previously held, in a decision cited by the Manns, that “where attorney fees are awarded, * * * but the amount is not speci fied, the [foreclosure] order is not final and appealable.” German American Capital Corp. v. FLG Properties Dayton, LLC , 2d Dist. Montgomery No. 25656, *A-2 (May 1, 2013), citing Dayton Women’s Health Ctr., Inc. v. Enix , 86 Ohio App.3d 777, 621 N.E.2d 1262 (2d Dist.1993), and FirstMerit Bank, N.A. v. Moore , 183 Ohio App.3d 550, 2009-Ohio-3928, 917 N.E.2d 864 (9th Di st.). Some courts hold otherwise, and the Supreme Court of Ohio recently settled the issue by concluding that “[a] judgment decree in foreclosure that allows as part of recove rable damages unspecified amounts advanced by the mortgagee for inspections, appraisals, property prot ection, and maintenance is a final, appealable order pursuant to R.C. 2505.02(B)(1).” CitiMortgage, Inc. v. Roznowski , Slip Opinion No. 2014-Ohio-1984, paragraph one of th e syllabus. The court did st ress that “for a judgment decree in foreclosure to constitute a final order, it must address the rights of all lienholders and the responsibilities of the mortgagor.” Id . at ¶ 20. {¶ 28} The foreclosure order in the case befo re us did address the rights of the lienholders and the Manns’ responsib ilities. Accordingly, the order was final and the question of the entitlement to attorney fees could have been appealed, ev en though the amount had not yet been set. If the Manns wished to challenge the amount of attorney fees, they could have done so in the context of the foreclosure action, either by filing a notice of appeal or by filing a motion for relief from judgment under Civ.R. 60(B). In Roznowski , the Supreme Court indicated that the amounts expended by a mortgagee for items like inspections and propert y protection may be challenged in an appeal from a confirmation order. Id. at ¶ 35. The Manns’ failure to take any action in the Foreclosure Case prevents them from relitigating the issue of Resolution’s 12

 entitlement to attorney fees. {¶ 29} “Res judicata is a doctrin e of judicial preclusion.” State v. Harris , 2d Dist. Montgomery No. 24739, 2012-Ohio-1853, ¶ 14. “The doctrine of res judicata encompasses the two related concepts of claim pr eclusion, also known as res judicat a or estoppel by judgment, and issue preclusion, also known as collateral estoppel.” O'Nesti v. DeBartolo Realty Corp. , 113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803, ¶ 6, citing Grava v. Parkman Twp. , 73 Ohio St.3d 379, 381, 653 N.E.2d 226 (1995). “Claim preclusi on prevents subsequent actions, by the same parties or their privies, based upon any claim arising out of a transaction that was the subject matter of a previous acti on. Where a claim could have been litigated in the previous suit, claim preclusion also bars subsequent actions on that matter.” (Citations omitted.) Id. {¶ 30} The parties in this case were both parties to the Foreclosure Case, and the claim

arises out of the foreclosure tran saction. It could also have been litigated in that action, by way of an appeal or through a motion for relief from judgment. If the issue of entitlement to fees had been resolved in the Manns’ favor, Resolution coul d have been required to return the fees. We, therefore, agree with the trial court that claims relating to the attorney fees paid to Resolution are barred by res judicata. {¶ 31} Furthermore, based on the application of res judicata, we do not need to discuss the trial court’s alternate ruling on waiver. Accordingly, the Manns’ First Assignment of Error

is overruled.

III. Did the Contract Claim for Attorney Fees Violate Public Policy? {¶ 32} The Manns’ Second Assignme nt of Error states that: 13

 The Trial Court Erred in Overruling Plaintiff-Appellants’ Summary Judgment Motion for the Reason that, as a Matter of Law, (B) A Prejudgment Taking of Plaintiff-Appellants’ Sale Proceeds Pursuant to a Contract Claim for Attorney Fees Violates: (1) Public Policy[;] (2) R.C. 1319.02. {¶ 33} Under this assignment of error, the Ma nns contend that awards of attorney fees

in foreclosure actions have hist orically been denied as against public policy. In addition, the Manns argue that even though R.C. 1319.02 permits attorney fees in transactions over $100,000, that statute would not apply to the fees in the case before us, because the loan was for less than

that amount. {¶ 34} In view of our resolution of the First Assignment of Error, this assignment of error is moot. Again, the Manns could have rais ed these issues in the Foreclosure Case, but chose not to do so. Accordingly, the Second Assignment of Error is overruled, as moot.

IV. Were the Manns Entitled to Compensatory Damages

on their Slander of Title Claim? {¶ 35} The Manns’ Third Assignment of Error states as follows: The Trial Court Erred in Overruling Plaintiff-Appellants’ Summary Judgment Motion for the Reason that, as a Matter of Law, (C) Plaintiff-Appellants Were Entitled to Compensatory Damages Pursuant to Their Slander of Title

Claim. {¶ 36} Under this assignment of error, the Manns contend that th e trial court should have granted their motion for summary judgment on the slander of title claim. They note that 14

 Resolution refused to remove its judgment lien on other property they owned for five months, despite having received the $88,000 pay-off for th e money that it was ow ed. The trial court granted summary judgment to Resolution after finding no evidence of special damages or bad

faith. The court’s decision was also based on the fact that th e judgment lien was not false because the Manns, in fact, owed the money to Resolution. {¶ 37} We have previously noted that “[a] trial court may grant a moving party summary judgment pursuant to Civ. R. 56 if th ere 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 conclu sion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evid ence construed most str ongly 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 judgme nt 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.) {¶ 38} “Slander of title is a tort action which may be ‘ “brought against any one who falsely and maliciously defames the property, eith er real or personal, of another, and thereby causes him some special pecuniary damage or loss.” ’ ” Green v. Lemarr , 139 Ohio App.3d 414, 430, 744 N.E.2d 212 (2d Dist.2000), citing Buehrer v. Provident Mut. Life Ins. Co. of Philadelphia , 37 Ohio App. 250, 256, 174 N.E. 597 (6th Dist.1930), aff’d. , 123 Ohio St. 264, 175 N.E. 25 (1931). In order to preva il, a claimant must prove that: “(1) there was a publication of a slanderous statement disparaging claimant's title; (2) the statement was false; (3) the statement was made with 15

 malice or made with reckless disregard of its falsity; and (4) the statement caused actual or special damages.” Green at 430-31, quoting Colquhoun v. Webber , 684 A.2d 405, 409 (Me.1996). {¶ 39} On consideration, we disagree with th e trial court’s analys is of Resolution’s alleged “false” statement. Although the lien may have been accurate when it was filed, it became false once the debt was paid and Resoluti on refused to remove the lien. One could also conclude that Resolution acted with reckless disregard of the falsity. In this regard, we note the statement from Resolution’s attorney that Resolution would take steps to release the lien once it had been paid. Resolution not only failed to do so for five months, it also demanded a release of claims by the Manns as a condition of releasin g the lien, when the debt underlying the lien had already been fully paid. In addition, Resolution released the lien only after the Manns filed the action for slander of title. These actions argu ably were done in bad faith, which has been defined as “ ‘that which imports a dishonest purpose and implies wrongdoing or some motive of

self-interest.’ ” Master Chemical Corp. v. Inkrott , 55 Ohio St.3d 23, 28, 563 N.E.2d 26 (1990), quoting Smith v. Halverson , 273 N.W.2d 146, 150-151 (S.D. 1978). (Other citation omitted.) Bad faith has also been defined as importing “ ‘a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the

nature of fraud. It also embraces actual inte nt to mislead or deceive another.’ ” State v. Franklin , 2d Dist. Montgomery No. 19041, 2002-Ohio-2370, ¶ 47, quoting State v. Buhrman , 2d Dist. Greene No. 96 CA 145, 1997 WL 566154, *12 (Sept. 12, 1997). {¶ 40} With respect to the measure of damages for slander of title, we have indicated that “in a proper case, a party c ould recover the attorney fees in curred in removing a cloud on title 16

 as ‘special damages,’ and could also recover attorney fees for prosecuting a slander of title

action. The latter fees would not be included in ‘s pecial damages’ but w ould arise from a finding

of bad faith.” Green, 139 Ohio App.3d at 435-436, 744 N.E.2d 212. {¶ 41} After reviewing the record, we conclude that genuine issues of material fact exist regarding the slander of title claim, and whether Resolution acted in bad faith. The trial court, therefore, erred in rende ring summary judgment on Resoluti on’s behalf on this point. {¶ 42} Accordingly, the Manns’ Third Assignment of Error is sustained.

V. Motion for Sanctions {¶ 43} As a final matter, we note that Resolution filed a motion for sanctions in our court on March 28, 2014. Resolution’ s motion is based on App.R. 23, which allows an award of reasonable expenses, including atto rney fees and costs, if an a ppellant’s appeal is found to be frivolous. According to Resolution, the Manns ha d no reasonable grounds for their attorney fee argument. {¶ 44} We have cautioned a litigant to be mindf ul of App.R. 23, for example, where the trial court relied on an Ohio Supreme Court cas e that expressly overruled the appellant’s only legal authority to support an assignment of error. Szotak v. Moraine Country Club, Inc. , 172 Ohio App.3d 34, 2007-Ohio-2974, 872 N.E.2d 1270, ¶ 27 (2d Dist.) Even in that situation, however, we did not impose sanctions. {¶ 45} The fact that a party may disagree with another party’s position, or may even be perturbed at having to defend its own position does not mean that an appeal is frivolous. Accordingly, the motion for sanctions is overruled. 17



VI. Conclusion {¶ 46} The Manns’ First Assignment of E rror having been overruled, their Second Assignment of Error having been overruled, as m oot, and their Third Assignment of Error having been sustained, the judgment of the trial court is affirmed in part and reversed in part. This cause is remanded to the trial court for further proceedings.

. . . . . . . . . . . . . FROELICH, P.J., and HALL, J., concur.

Copies mailed to: Stephen E. Klein Daniel A. DeMarco Phillip G. Eckenrode Hon. Robert J. Lindeman