Helfrich v. Foor Family Invests., L.L.C.

[Cite as Helfrich v. Foor Family Invests., L.L.C., 2026-Ohio-4396.] IN THE OHIO COURT OF APPEALS FIFTH APPELLATE DISTRICT LICKING COUNTY, OHIO JAMES HELFRICH, Case No. 2026 CA 00024 Plaintiff - Appellant Opinion And Judgment Entry -vs- Appeal from the Licking County Court of Common Pleas, Case No. 18 CV 00245 FOOR FAMILY INVESTMENTS, LLC, Judgment: Affirmed Defendant - Appellee Date of Judgment Entry: November 3, 2026 BEFORE: William B. Hoffman; Craig R. Baldwin; Robert G. Montgomery, Judges APPEARANCES: JAMES HELFRICH, Pro se, Plaintiff-Appellant; JOHN C. ALBERT, for Defendant-Appellee. Montgomery, J. {¶1} Plaintiff-appellant James Helfrich appeals the judgment entered by the Licking County Common Pleas Court overruling his motion for new trial and awarding Defendant- appellee Foor Family Investments, LLC, $121,047.71 in attorney fees and $5,150.45 in expenses based on Appellant’s frivolous conduct.  STATEMENT OF THE FACTS AND CASE {¶2} Appellant and Appellee own parcels of property that abut each other and upon which farms have existed for several years. Appellee installed a systemic tile network on its farm to address drainage and connected it to a ten-inch diameter tile that ran across Appellant’s property and emptied into a pond. This new tile system replaced drainage tiles that had been in existence for over fifty years at the time of the installation. The ten-inch tile was present on Appellant’s property and had served as an outlet for the known life of the system until September of 2017, when that tile no longer accepted the drainage from Appellee’s property. Appellee installed a standpipe at the border with Appellant’s property and water flowed up and out of that pipe on to the ground. The flow from that standpipe spread over both parties’ properties. {¶3} Appellant planned to purchase the farm abutting Appellee’s farm in 2015. Appellant discovered holes in the farm field that he attributed to the drain tile which ran from Appellee’s property through the property he planned to purchase. He contacted Appellee about repairing the tile by letter dated July 6, 2015. Ronald Foor responded to the letter and asked that Appellant contact him after the crops had been harvested from the field surrounding the defective tile. Appellant did not contact any representative of Appellee and neither Ronald Foor nor any representative from Appellee contacted Appellant. {¶4} Bob Carr, principal of B.Carr Farms, LLC, worked for Appellee and investigated repairs of the tile drainage system on Appellee’s farm. After discussing the matter with Appellee, plans were made to update the fifty-year-old tile drainage network with a new, systemic network using corrugated plastic pipe in place of clay pipe. The new plan did not alter the direction or flow of the water from Appellee’s farm. Though new corrugated pipe was installed and the new drainage network was comprised of a greater amount of pipe, the amount of water that would pass through the system remained the same. The water would move slower as a result of the corrugations in the pipe, thus reducing the burden on the drain tile that passed through Appellant’s property. Further, the new system directed the water to a ten-inch drain in the same location on Appellee’s property that connected with the ten-inch drain on Appellant’s property. This ten-inch line had existed for over fifty years and had been maintained by Appellee and its predecessors in title by making repairs on its farm as well as on the farm currently owned by Appellant. {¶5} Appellee offered to install a new ten-inch drain tile on Appellant’s farm, but Appellant refused to allow the installation, characterizing the request as seeking an easement across his property. Appellee did not agree that it was seeking an easement but only asked to replace the older line. {¶6} Appellee proceeded with the design and installation of the new tile system on its property, retaining Vince Chrisman for the design and appellee B.Carr Farms, LLC, for the installation. Chrisman, an expert in the field of agricultural drainage with several years of experience, created a blueprint for the installation of the new drainage system that included more tile than had been installed in the old system, but was designed to connect to the same ten-inch tile that was used by the old system. Chrisman explained that his design, including the connection to the ten-inch line, followed the natural contour and flow of water on the land. He explained that the water would follow this path and flow onto Appellant’s property if the drainage system was not available. He also stated that the drainage system that Appellee installed would benefit Appellant because it decreased the speed of the flow of the water and the burden on Appellant’s drainage, reduced the amount of erosion, and helped prevent contamination. {¶7} Stasel Osborn, an employee of Carr, was working on the installation of the tile system on Appellee’s property. As he was driving by the two properties, he noticed Appellant working with a small backhoe near the area where the ten-inch tile passed from Appellee’s property to Appellant’s property. He turned around and drove out into the field on Appellee’s side of the boundary and watched as Appellant continued to excavate and fill in a location that Osborn was convinced was directly over the location of the ten-inch drain. Osborn was further convinced that Appellant was blocking the drain, based upon the location of his excavation and the fact that water was no longer flowing through the ten-inch drain, but was welling up from the exposed tile and flowing over the property. {¶8} While Appellant denied taking steps with the intent of blocking the drain, he did admit that he filled holes he had asked Appellee to repair and that he "dug the dirt away, and anything I could find at the beginning, I threw down there. When they asked what I put in there, I said, ‘I don't care what it was. I filled the hole with shoes, with rocks, license plates, anything. It didn't matter to me what I put down there.’” Trial Transcript, p. 162. He explained that he took this step to protect his family, friends and livestock from the hazards of the holes in the field. He also admitted that he could have repaired the defect in the tile that caused the hole or called Ron Foor to ask that he make repairs, but he chose to do neither. {¶9} Appellant filed the instant action against Carr and Appellee regarding "excessive and harmful drainage of subsurface water across property owned by the Plaintiff, James Helfrich." Complaint, March 5, 2018, p. 1. Appellant referenced nine causes of action in his complaint, all related to the flow of water from Appellee’s property to Appellant’s property. Appellee filed an answer and a counterclaim for damages seeking the establishment of an easement. Appellant’s insurance company retained counsel to represent him on the counterclaim only. Appellant dismissed his claims against Carr. {¶10} Trial commenced on August 30, 2021. Appellant represented himself regarding his claims but was represented by counsel with regard to the counterclaim filed by Appellee. At the completion of Appellant’s case, Appellee’s motion for directed verdict regarding Appellant’s claims was granted. The matter proceeded to trial on the counterclaim of Appellee. The jury returned a verdict in Appellee’s favor, awarding $30,000.00 in damages and finding that an easement by estoppel existed. Appellant appealed, and this Court affirmed the judgment of the trial court. Helfrich v. Foor Family Investments, LLC, 2022-Ohio-3446. {¶11} Appellee moved for prejudgment interest, attorney fees, and costs for both the underlying action and the appeal. After a hearing, the trial court granted Appellee’s motion for attorney fees and costs, finding frivolous conduct on the part of Appellant regarding both the underlying action and the appeal. The trial court awarded Appellee attorney fees in the amount of $121,047.71 and $5,150.45 in expenses. {¶12} Appellant moved for a new trial on the basis of fraud. The trial court overruled his motion, finding it was untimely filed. {¶13} It is from the March 11, 2026, judgment of the trial court Appellant prosecutes his appeal, assigning as error: {¶14} “I. THE TRIAL COURT ERRED WHEN IT DENIED HELFRICH’S MOTION FOR FRAUD AND A NEW TRIAL.”  {¶15} “II. THE TRIAL COURT ERRED WHEN IT APPLIED CIVIL RULE 59 AND A 28-DAY STATUTE OF LIMITATIONS TO A 60 B (5) MOTION BASED ON WHAT IT IS REQUESTING.” {¶16} “III. THE TRIAL COURT DID ERR WHEN IT DENIED EVIDENCE AND WHEN IT DENIED ALLOWING ME TO PROFFER IT TO THE COURT REPORTER.” {¶17} “IV. THE TRIAL COURT ERRED WHEN IT DID NOT EVEN RULE ON OR CONSIDER HELFRICH’S ATTORNEY’S MOTION TO SUPPLEMENT.” {¶18} “V. THE TRIAL COURT ERRED WHEN IT AWARDED ATTORNEY’S FEES AND COSTS FOR AN APPEAL.” {¶19} “VI. THE TRIAL COURT ERRED WHEN IT AWARDED $121,047.71 FOR ATTORNEYS’ FEES AND $5,150.45 OF EXPENSES.” {¶20} “VII. THE TRIAL COURT ERRED WHEN IT FOUND THIS CASE TO BE FRIVOLOUS.” I. {¶21} In his first assignment of error, Appellant argues the trial court erred in overruling his motion for new trial based on fraud. {¶22} Civ.R. 59(B) provides in pertinent part: Except as otherwise provided by statute, a motion for a new trial, remitter, additur, prejudgment interest, or attorney’s fees must be served within twenty- eight days of the entry of judgment or, if the clerk has not completed service of the notice of judgment within the three-day period described in Civ.R. 58(B), within twenty-eight days of the date when the clerk actually completes service.  {¶23} Appellant filed his motion for new trial on August 7, 2024. The entry of judgment following trial was filed September 8, 2021. We find the trial court did not err in finding Appellant’s motion for new trial was untimely filed, and therefore the trial court did not err in overruling the motion on that basis. {¶24} The first assignment of error is overruled. II. {¶25} In his second assignment of error, Appellant argues the trial court erred in treating his motion as a motion for new trial, rather than as a motion for relief from judgment pursuant to Civ.R. 60(B)(5). {¶26} While Appellant does not cite to the Civil Rules in his motion, the motion is captioned “Motion for a New Trial Based on Fraud in the Previous Trial.” In the body of the motion, Appellant seeks a new trial. Nothing in the motion suggests Appellant was seeking relief from judgment pursuant to Civ.R. 60(B), and we find the trial court did not err in treating the motion as a motion for new trial pursuant to Civ.R. 59. {¶27} Further, Civ.R. 60(B) provides in pertinent part: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: *** (2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;  *** (5) Any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. {¶28} Appellant’s motion sought a new trial based on fraud and referenced newly discovered evidence. Therefore, even if the trial court had treated the motion as a Civ.R. 60(B) motion, the motion would have been filed pursuant to Civ.R. 60(B)(2) or (3), and not subject to the “catch-all” provision of Civ.R. 60(B)(5). Accordingly, Appellant’s motion would have been untimely filed, as the motion was not filed within one year of the entry of judgment. {¶29} The second assignment of error is overruled. III. {¶30} In his third assignment of error, Appellant argues the trial court erred in excluding the testimony of Amy Bost and Mr. Woolever and further erred in refusing to allow him to proffer the testimony of Bost and Woolever. The trial court allowed Bost to begin to testify but excluded the remainder of her testimony on the basis that her testimony was not relevant. The trial court similarly found Woolever’s testimony to be irrelevant based on Appellant’s explanation of Woolever’s testimony. STANDARD OF REVIEW {¶31} The Ohio Supreme Court has established that it is within the sound discretion of the trial court to determine the relevancy of evidence and whether the evidence will assist the trier of fact in determining a factual issue. State v. Williams, 4 Ohio St.3d 53 (1983).  ANALYSIS {¶32} When Amy Bost began to testify, she testified that she lived across the street from Appellee’s farm from 2004 to 2009. Appellant asked her about the condition of Appellee’s field during the time she lived near the property. At this point, the trial court sustained an objection to her continued testimony based on the fact that she lived there eight years before any of the allegations in the instant case occurred. We find the trial court did not abuse its discretion in finding her testimony was irrelevant to the issue before the court, which was solely whether Appellant’s claims were frivolous. Appellant did not specifically request an opportunity to proffer Bost’s testimony. {¶33} As to Woolever’s potential testimony, the trial court did provide Appellant with an opportunity to proffer the substance of Woolever’s testimony. Appellant represented to the trial court that Woolever would testify that Appellant did not dig up the area in question and did not crush the drain tile. While this testimony may have been relevant in the trial on the merits of Appellant’s claims, the jury previously found Appellant blocked the ten-inch drain line. The trial court did not abuse its discretion in excluding Woolever’s testimony on the basis that it was not relevant to the issue before the court as to whether Appellant’s claims were frivolous. {¶34} The third assignment of error is overruled. IV. {¶35} In his fourth assignment of error, Appellant argues that the trial court erred in failing to consider his motion to supplement the record. {¶36} Appellant filed his motion on July 18, 2024, almost eleven months after the August 28, 2023, evidentiary hearing on Appellee’s motion for fees and costs. At the close of the hearing, the trial court gave Appellant one month to file a post-hearing brief. We find the trial court did not err in failing to allow Appellant to supplement the record with additional evidence nearly a year after the hearing. {¶37} The fourth assignment of error is overruled. V. {¶38} In his fifth assignment of error, Appellant argues the trial court was without jurisdiction to award attorney fees and costs associated with his direct appeal. {¶39} R.C. 2323.51 allows for the recovery of fees for the civil action "or appeal." This Court has previously held that pursuant to this statute, the trial court properly allowed attorney fees and expenses incurred in conjunction with an appeal to this Court. Helfrich v. Madison 2014-Ohio-1928, ¶ 65 (5th Dist.); Bilbaran Farm, Inc. v. Bakerwell, Inc., 2014-Ohio- 4017, ¶ 35 (5th Dist.). {¶40} The fifth assignment of error is overruled. VI. {¶41} In his sixth assignment of error, Appellant argues the trial court erred in awarding Appellee $121,047.71 for attorney fees and $5,150.45 for expenses. Counterclaim {¶42} Appellant argues the trial court erred in awarding fees and expenses Appellee incurred in pursuing its counterclaim against him. {¶43} Civ. R. 13(A) provides: A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim  and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13. {¶44} Appellee’s counterclaim arose out of the same transaction or occurrence that was the subject matter of Appellant’s complaint, later deemed by the trial court to be frivolous, and thus was a compulsory counterclaim to Appellant’s complaint. R.C. 2323.51(B)(1) provides in pertinent part that “any party adversely affected by 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 civil action or appeal.” We find that in the instant case, the expenses and fees incurred in bringing the compulsory counterclaim were incurred because of Appellant’s frivolous conduct in bringing the action, and the trial court did not err in awarding such fees and expenses. Filing Fees, Deposition Expenses, Witness Fees, and Exhibit Expenses {¶45} Appellant argues there is no statutory basis for taxing filing fees, deposition expenses, witness fees, and exhibit expenses as court costs. However, R.C. 2323.51(B)(1) allows for the taxing of court costs, as well as “other reasonable expenses” incurred as a result of frivolous conduct. We find the trial court did not err in including these fees in the award of reasonable expenses incurred by Appellee.  Prejudgment Interest {¶46} Appellant argues Appellee is not entitled to prejudgment interest. The judgment appealed from in this case recites that the matter is before the court on the motion of Appellee for attorney fees, costs, and prejudgment interest. However, the trial court did not award prejudgment interest to Appellee in its March 11, 2026, judgment entry, which the trial court labeled as a final, appealable order. In our review of the docket and record in this case, we find no entry in which the trial court granted Appellee’s motion for prejudgment interest. We therefore find the trial court overruled the motion sub silentio in its March 11, 2026 judgment entry, and Appellant’s arguments concerning Appellee’s entitlement to prejudgment interest are not properly before this Court at this time. {¶47} The sixth assignment of error is overruled. VII. {¶48} In his seventh assignment of error, Appellant argues the trial court erred in finding he engaged in frivolous conduct with respect to the filing of his complaint. STANDARD OF REVIEW AND APPLICABLE LAW {¶49} This Court set forth the law and standard of review applicable to a claim for fees and expenses due to frivolous conduct pursuant to R.C. 2323.51 in Almasoodi v. J. Harris Constr. Inc., 2023-Ohio-895, ¶¶ 54-56 (5th Dist.): R.C. 2323.51 provides a court may award court costs, reasonable attorney fees, and other reasonable expenses incurred in connection with the civil action or appeal to any party to the civil action or appeal who was adversely affected by frivolous conduct. A motion for sanctions brought under R.C. 2323.51 requires a three-step analysis by the trial court. The trial court must determine (1) whether the party engaged in frivolous conduct, (2) if the conduct was frivolous, whether any party was adversely affected by it, and (3) if an award is to be made, the amount of the award. Bear v. Troyer, 5th Dist. Guernsey Nos. 15 CA 17, 15 CA 24, 2016- Ohio-3363, 2016 WL 3219711, ¶ 55. The presence of one of the following factors supports a finding of frivolous conduct under R.C. 2323.51(A)(2)(a): 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. 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. 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. 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. The question of what constitutes frivolous conduct may be either a factual determination, or a legal determination. Ferron v. Video Professor, Inc., 5th Dist.  Delaware No. 08-CAE-09-0055, 2009-Ohio-3133, 2009 WL 1836486, ¶ 44, Pingue v. Pingue, 5th Dist. Delaware No. 06-CAE-10-0077, 2007-Ohio-4818, ¶ 20 citing Wiltberger v. Davis, 110 Ohio App.3d 46, 673 N.E.2d 628 (10th Dist. 1996). A determination that the conduct is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law requires a legal analysis. Lable & Co. v. Flowers, 104 Ohio App.3d 227, 233, 661 N.E.2d 782 (9th Dist.1995). With respect to purely legal issues, we follow a de novo standard of review and need not defer to the judgment of the trial court. Wiltberger, supra, at 51-52, 673 N.E.2d 628. However, we do find some degree of deference appropriate in reviewing a trial court's factual determinations and will not disturb such factual determinations where the record contains competent, credible evidence to support such findings. Id. {¶50} Civ.R. 11 applies to both attorneys and pro se litigants and concerns the signing of pleadings, motions, and other documents. The Rule provides in pertinent part: The signature of an attorney or pro se party constitutes a certificate by the attorney or party that the attorney or party has read the document; that to the best of the attorney's or party's knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. . . . For a willful violation of this rule, an attorney or pro se party, upon motion of a party or upon the court's own motion, may be subjected to appropriate action, including an award to the opposing party of expenses and reasonable attorney fees incurred in bringing any motion under this rule.  {¶51} When evaluating a motion for sanctions under Civ.R. 11, a court must assess whether the person signing the document (1) has read the pleading, (2) harbors good grounds to support it to the best of his or her knowledge, information, and belief, and (3) did not file it for purposes of delay. Ceol v. Zion Indus., Inc., 81 Ohio App.3d 286, 290 (9th Dist. 1992). If any of these requirements are not satisfied, the court must then determine whether the failure was "willful" rather than merely "negligent." Id. The use of the term "willful" as a prerequisite for imposing sanctions under Civ.R. 11 indicates that courts are to apply a subjective bad- faith standard in their analysis. State ex rel. Dreamer v. Mason, 2007-Ohio-4789, ¶ 19. We review sanctions imposed pursuant to Civ.R. 11 under an abuse of discretion standard. State ex rel. Bardwell v. Cuyahoga County Bd. of Comm'rs, 2010-Ohio-5073, ¶ 9. ANALYSIS {¶52} The trial court found that because Appellant is a vexatious litigator, he was required to seek leave to proceed in this case prior to filing his complaint. The trial court found Appellant intentionally misled Judge Michael Ward, the court official assigned to oversee Appellant’s filings, by misrepresenting facts and hiding his own actions. The trial court found Appellee demonstrated through Appellant’s deposition testimony that Appellant failed to reveal to Judge Ward that Appellant himself had blocked or plugged the drain line which carried the water which was the subject of the action. Testimony was presented at trial that Appellant excavated the pipe at the lot line, and the jury specifically found that Appellant intentionally or negligently damaged the drain line. {¶53} The trial court found Appellant further misled Judge Ward concerning his own knowledge of Appellee’s use of the drain tile. The trial court found that knowing his own actions were to blame for the failure of the drain line to work properly, Appellant knew there was no evidence that Appellee caused the water ponding on Appellant’s property, and further that Appellant had no evidence that anything Appellee did either altered or increased the flow of water. The trial court further found the issues raised by Appellant in his appeal to this Court were all found to be baseless. {¶54} We find the trial court did not abuse its discretion in finding the action to be frivolous, and there was competent, credible evidence in the record to support the trial court’s finding. {¶55} The seventh assignment of error is overruled. CONCLUSION {¶56} The judgment of the Licking County Common Pleas Court is affirmed. {¶57} Costs are assessed to Appellant. By: Montgomery, J. Hoffman, P.J. and Baldwin, J. concur.