[Cite as Forrester v. Mercker,
2016-Ohio-3080.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Kenneth W. Forrester, :
Plaintiff-Appellant, : No. 15AP-833
(C.P.C. No. 13CV-6791)
v. :
(ACCELERATED CALENDAR)
Kent Mercker et al., :
Defendants-Appellees. :
D E C I S I O N
Rendered on May 19, 2016
On brief: The Behal Law Group LLC, Gilbert J. Gradisar,
and Jeffrey A. Eyerman, for appellant. Argued: Gilbert J.
Gradisar.
On brief: Hrabcak & Company, L.P.A., Michael Hrabcak,
and Benjamin B. Nelson, for appellees. Argued: Michael
Hrabcak.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, P.J.
{¶ 1} Plaintiff-appellant, Kenneth W. Forrester, appeals the September 2, 2015
decision and entry of the Franklin County Court of Common Pleas denying appellant's
motion to amend his complaint to conform to the evidence at trial and granting the
motion of defendants-appellees, Kent and Julie Mercker, to deny appellant's request to
add a claim for attorney fees. For the following reasons, we affirm the judgment of the
trial court.
I. Facts and Procedural History
{¶ 2} The facts relevant to this matter are not in dispute. In 2011, the parties
entered into an agreement for appellant to renovate appellees' home. Appellees timely
No. 15AP-833 2
paid appellant $347,363.82 for services rendered under the contract. On May 4, 2012,
appellant sent appellees a final invoice requesting payment in the amount of $9,772.49.
Appellees did not render payment on the May 4, 2012 invoice.
{¶ 3} On October 19, 2012, appellant filed a complaint in the Franklin County
Municipal Court alleging breach of contract, among other claims. In his complaint,
appellant alleged that the parties entered into an agreement that "was memorialized in a
written contract signed by all parties on or about September 25, 2011." (Complaint, 2.)
Appellant did not attach a copy of the contract to his complaint, stating that "[d]espite
diligent search on the part of Mr. Forrester, a copy of the contract could not be located."
(Complaint, 2.) Appellant further stated that "[a] copy of the contract is believed to be in
defendants' possession." (Complaint, 2.) Appellant requested damages "in the amount of
$9,772.49" and further requested reimbursement of "his costs incurred in this action,
interest at the statutory rate accruing from the judgment date, and for such other relief,
both legal and equitable, as this Court deems appropriate." (Complaint, 4.)
{¶ 4} On April 18, 2013, appellees filed an answer and counterclaim. Appellees
did not attach a copy of the contract to the counterclaim. On the same date, appellees
filed a motion to transfer venue to the common pleas court because the relief sought by
appellees exceeded the jurisdictional limit of the municipal court. On May 3, 2013, the
municipal court filed an entry granting appellees' motion to transfer venue to the common
pleas court. On July 24, 2013, appellant filed an answer to appellees' counterclaim.
{¶ 5} On March 27, 2014, appellees filed a motion for partial summary judgment.
On April 9, 2014, appellant filed a combined memorandum contra appellees' motion for
summary judgment and a cross-motion for summary judgment. On April 11, 2014,
appellees filed a motion to strike appellant's cross-motion for summary judgment. On
June 9, 2014, the trial court filed a decision and entry denying appellees' motion for
partial summary judgment and granting appellees' motion to strike.
{¶ 6} On February 9, 2015, the parties filed a joint stipulation of facts. In the
stipulation, the parties agreed that they entered into a contract, but were unable to locate
a signed version of the contract. The parties attached an "unsigned version of the
contract" to the stipulation, which they stated was "in all material respects, identical to the
No. 15AP-833 3
signed version of the contract that the parties have been unable to locate." (Joint
Stipulation, 1.)
{¶ 7} Thereafter, the case proceeded to trial. According to the parties, appellant
orally requested at trial to amend his complaint to clarify that he sought attorney fees.1
The trial court declined to rule on the request until after trial, essentially bifurcating the
issue of attorney fees, and ordered the parties to submit briefs on the issue by March 6,
2015. On February 12, 2015, appellant filed a written motion to amend the complaint to
conform to the evidence at trial. Appellant asserted that under the contract, a nonbreaching party was able to recover damages "including a reasonable attorney's fee."
(Motion, 2.) On February 13, 2015, the jury returned a verdict, finding that appellees
breached the contract and awarding compensatory damages to appellant in the amount of
$9,772.49.
{¶ 8} On March 6, 2015, appellees filed a post-trial motion to deny appellant's
request to add a claim for attorney fees. Also on March 6, 2015, appellant filed a brief in
support of his entitlement to attorney fees. On September 2, 2015, the trial court filed a
decision and entry denying appellant's motion to amend the complaint to conform to the
evidence at trial and granting appellees' motion to deny appellant's request to add a claim
for attorney fees.
II. Assignments of Error
{¶ 9} Appellant assigns two errors for this court's review:
I. The trial judge's decision not to allow amendment to
conform to the stipulations was reversible error.
II. The trial judge's decision not to allow Mr. Forrester to
recoup his attorneys' fees was a grievous error that amounts
to a per se abuse of discretion.
Because appellant's assignments of error are interrelated, we discuss them together.
III. Discussion
{¶ 10} In his assignments of error, appellant argues the trial court erred by denying
his request to amend his complaint to conform to the evidence presented at trial, thereby
1We note that a transcript of the trial has not been filed with this court and therefore is not a part of the
record before us.
No. 15AP-833 4
preventing recovery of attorney fees provided under the contract. Appellees respond that,
by waiting until the commencement of trial to amend his complaint, appellant's actions
constituted undue delay.
{¶ 11} Attorney fees are generally not recoverable in contract actions, consistent
with the "American Rule" which requires each party to litigation to pay its own attorney
fees in most circumstances. Stonehenge Land Co. v. Beazer Homes Invests., LLC, 177
Ohio App.3d 7,
2008-Ohio-148, ¶ 34 (10th Dist.), citing Sorin v. Bd. of Edn. of
Warrensville Hts. School Dist.,
46 Ohio St.2d 177, 179 (1976). However, an exception
allows for the recovery of attorney fees if the parties contract to shift fees.
Id., citing
McConnell v. Hunt Sports Ent.,
132 Ohio App.3d 657, 699 (10th Dist.1999), citing Pegan
v. Crawmer,
79 Ohio St.3d 155, 156 (1997).
{¶ 12} Civ.R. 15(B) provides:
When issues not raised by the pleadings are tried by express
or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause
them to conform to the evidence and to raise these issues may
be made upon motion of any party at any time, even after
judgment. Failure to amend as provided herein does not affect
the result of the trial of these issues. If evidence is objected to
at the trial on the ground that it is not within the issues made
by the pleadings, the court may allow the pleadings to be
amended and shall do so freely when the presentation of the
merits of the action will be subserved thereby and the
objecting party fails to satisfy the court that the admission of
such evidence would prejudice him in maintaining his action
or defense upon the merits. The court may grant a
continuance to enable the objecting party to meet such
evidence.
Thus, the rule provides that an "amendment can be made at any time, even after
judgment, and is to be liberally construed in an effort to decide cases on their merits."
Mayo v. Bethesda Lutheran Communities, 8th Dist. No. 100637, 2014-Ohio-3499, ¶ 8,
citing Monroe v. Youssef, 11th Dist. No. 2009-T-0012,
2012-Ohio-6122, ¶ 67, citing Hall
v. Bunn,
11 Ohio St.3d 118, 121 (1984). See Stormont v. Tenn-River Trading Co., Inc.,
10th Dist. No. 94APG08-1272 (Apr. 27, 1995). The trial court is to permit the amendment
after an objection if the following criteria are met: "(1) the presentation of the case's
No. 15AP-833 5
merits will be subserved thereby; and (2) the objecting party does not satisfy the court
that admission of the evidence would prejudice him in maintaining his case upon the
merits."
Hall at 121.
{¶ 13} "Under Civ.R. 15(B), in order to justify the exclusion of evidence on the basis
of prejudice, the objecting party must satisfy the court that admission of such evidence
will put him to serious disadvantage in presenting his case." Id. at 122. Generally,
surprise alone is rejected as a basis for exclusion.
Id. "In determining whether surprise
actually exists, the extent to which the objecting party had knowledge of the disputed
evidence is often considered."
Id. "Moreover, even in the event an objecting party is not
prepared for evidence offered outside the pleadings the court may still allow an
amendment under Civ.R. 15(B) and grant a continuance to enable the objecting party to
meet the new evidence."
Id.
{¶ 14} A reviewing court will not reverse a trial court's decision to grant or deny a
Civ.R. 15(B) motion to amend the pleadings absent an abuse of discretion. Stormont;
Mayo at ¶ 9, citing Everhart v. Everhart (In re Estate of Everhart), 12th Dist. No.
CA2013-07-019,
2014-Ohio-2476. "The term 'abuse of discretion' connotes more than an
error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary
or unconscionable." State v. Adams,
62 Ohio St.2d 151, 157 (1980).
{¶ 15} In its decision, the trial court found that "[u]pon review of the parties'
briefings and consideration of all the relevant circumstances, the Court finds that
Defendant has demonstrated that he would be unduly prejudiced were the Court to allow
Plaintiff to amend his Complaint at this stage of the proceedings." (Decision, 3.) Further,
the court stated that "[i]t would be unfair to allow Plaintiff to so greatly alter the scope of
his claim after approximately two and a half years of lititgation." (Decision, 3.) As a result,
the court denied appellant's motion to amend his complaint to conform to the evidence at
trial.
{¶ 16} Here, we cannot say that the trial court's decision was unreasonable,
arbitrary, or unconscionable.2 As a result, we cannot find that the trial court abused its
discretion in denying appellant's motion to amend his complaint pursuant to Civ.R. 15(B).
2 We note that the applicability of Civ.R. 54(C) was not raised by the parties.
No. 15AP-833 6
{¶ 17} Accordingly, we overrule appellant's first and second assignments of error.
IV. Conclusion
{¶ 18} Having overruled appellant's assignments of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER and HORTON, JJ., concur.
