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Rome Hilliard Self Storage v. Conkey9/23/2003
.Plaintiff-appellant, Rome Hilliard Self Storage ("Rome Hilliard"), appeals from a judgment of the Franklin County Municipal Court granting the motion of defendants-appellees, Lewis I. and David L. Conkey, for judgment on the pleadings. Because the record demonstrates no prejudicial error in the trial court's granting the Conkeys' motion for judgment on the pleadings, we affirm.
.The relationship between the Conkeys and Rome Hilliard began on September 28, 1995, when Lewis Conkey contracted to rent a parking space from Rome Hilliard so he could store his motor home. Ten months later, on the recommendation of Lewis Conkey, David Conkey contracted to rent two more parking spaces from Rome Hilliard for a trailer and open car hauler.
.The contracts the Conkeys signed each contained the following clause:
7. NON-LIABILITY OF OWNER AND INSURANCE OBLIGATION OF OCCUPANT: a) Occupant, at their expense, shall obtain all insurance which occupant requires for protection of property in space. * * * c) Occupant agrees to indemnify and hold harmless owner, its employees or agents from any claims for damages to property or personal injury , and cost, including attorney's fees, arising from use of premises by occupant. * * *
.Unfortunately, despite Rome Hilliard's security lights, closed-circuit camera, electronic code-activated access gate, and managers living on-site, the Conkeys' trailer, parked in the storage facility, was stolen on February 7, 1997.
.The loss gave rise to the first litigation ("the ancillary litigation"). Specifically, on July 9, 1997, the Conkeys filed a complaint against Rome Hilliard seeking tort damages for the theft of their personal property. The Conkeys alleged that: (1) the storage contract, in particular paragraph seven, was not enforceable because they had been defrauded by Rome Hilliard's misleading statements, material misrepresentations, and deceptive acts, and (2) Rome Hilliard had violated the Ohio Consumer Sales Practices Act ("OCSPA"), R.C. 1345.02(B)(1) and (2) and 1345.03(B)(6). Rome Hilliard filed a timely answer on July 25, 1997 and subsequently added a counterclaim for attorney fees.
.On April 16, 1998, the Conkeys moved to dismiss Rome Hilliard's counterclaim for attorney fees, contending the counterclaim was a premature Civ.R. 11 motion that should be dismissed as not ripe for adjudication. Rome Hilliard, on the other hand, contended it was not asserting a Civ.R. 11 motion, but rather an affirmative counterclaim based on R.C. 1345.09(F)(1), the attorney fees provision of the OCSPA. On May 26, 1998, the trial court sustained the Conkeys' motion to dismiss Rome Hilliard's counterclaim, determining that, "* * * at this time, [Rome Hilliard] failed to state a claim where relief could be granted. This Court is not precluding [Rome Hilliard] from filing any motions during or after the pendency of this case for any relief to which they feel entitled." (Decision, 2-3.)
.After its counterclaim was dismissed, Rome Hilliard filed a motion for summary judgment on October 2, 1998; the trial court granted the motion on December 11, 1998. Following the trial court's decision granting its motion, Rome Hilliard neither filed a Civ.R. 11 motion for attorney fees nor appealed the trial court's decision dismissing its counterclaim. Rather, the Conkeys brought the only appeal in the ancillary litigation. On December 2, 1999, this court affirmed the trial court's judgment granting summary judgment to Rome Hilliard.
.Over two years later, on May 13, 2002, Rome Hilliard filed a complaint requesting reimbursement for its attorney fees and litigation costs incurred in the ancillary litigati
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