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Duckworth v. Burger King Corp.1/27/2005
the act or practice that violated this chapter has brought or maintained an action that is groundless, and the consumer filed or maintained the action in bad faith.
{ } Therefore, all that is required under R.C. 1345.09(F) for a party to be eligible for entitlement to reasonable attorney fees is that it be the "prevailing party."
{ } In order for a formal "prevailing party" to exist, there must be an adjudication on the merits. Sturm v. Sturm (1992), 63 Ohio St.3d 671, 675. In LaBarbera v. Batsch (1967), 10 Ohio St.2d 106, syllabus, the Ohio Supreme Court held that a dismissal of an action for failure to file the case within the applicable statute of limitations is a dismissal on the merits. See, also, Talwar v. Kattan (June 17, 1999), Allen App. No. 1-98-83 (motion for summary judgment based upon the expiration of the statute of limitations is an adjudication upon the merits). Therefore, because Burger King prevailed on its statute-of-limitations defense, it was a "prevailing party" within the meaning of R.C. 1345.09(F) and "may" be entitled to attorney fees under that statute. As the trial court found that Burger King's counterclaim for attorney fees, pursuant to R.C. 1345.09(F), was never before it and, thus, never addressed the merits of the counterclaim, we must remand the matter for determination of this issue. Accordingly, Burger King's first cross-assignment of error is sustained.
{ } Burger King argues in its second cross-assignment of error that the trial court erred in failing to order appellants to reimburse it for the entire cost of Dr. Conaway's deposition. The trial court found that the parties should split the cost of the deposition based upon Civ.R. 26(B)(4)(c), which permits a court to order the party seeking discovery from an expert witness to pay the expert's fee for responding to discovery and also permits the court to order one party to pay another party the fair portion of the fees and expenses incurred by the latter party in obtaining facts and opinions from the expert. In ordering the parties to split the cost, the court determined that counsel for both parties attended the deposition and that the information obtained from it served to benefit both parties in some way. Burger King claims that the information obtained from the deposition benefited only appellants, the deposition was taken by appellants, no questions were asked by Burger King, and the sole purpose of the deposition was to buttress appellants' case by overcoming Dr. Conaway's testimony.
{ } Our review of a court's decision under Civ.R. 26(B)(4)(c) is by an abuse-of-discretion standard. See Siegel v. Birnbaum (Feb. 20, 1997), Cuyahoga App. Nos. 69105, 69059. We find no abuse of discretion. We have no reason to disturb the trial court's conclusion that the presence of Burger King's counsel at the deposition benefited it to some degree. Therefore, this argument is without merit, and Burger King's second cross-assignment of error is overruled.
{ } Accordingly, appellants' assignment of error is overruled, Burger King's first cross-assignment of error is sustained, and Burger King's second cross-assignment of error is overruled. The judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed in part, and this matter is remanded to that court for further proceedings in accordance with the law, consistent with this opinion.
Judgment affirmed in part and reversed in part and cause remanded.
LAZARUS and KLATT, JJ., concur.
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