COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59802 HELEN V. WOLFE, fka : HELEN V. LOGAN : : Plaintiff-appellee : and Cross-appellant : : JOURNAL ENTRY -vs- : AND : OPINION JAMES E. LOGAN, ET AL : : Defendant : : PEERLESS INSURANCE COMPANY : : Defendant-appellant : and Cross-appellee : DATE OF ANNOUNCEMENT : OF DECISION : FEBRUARY 13, 1992 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Domestic Relations Division Case No. D-142082 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee/ For defendant-appellant/ cross-appellant: cross-appellee: JOHN V. HEUTSCHE, ESQ. LINDA R. SOGG, ESQ. 602 The Park Building THOMPSON, HINE & FLORY 140 Public Square 1100 National City Bank Cleveland, Ohio 44114 Cleveland, Ohio 44114 - 2 - J.F. CORRIGAN, P.J., Appellant/cross-appellee, Peerless Insurance Company (hereinafter referred to as "Peerless") appeals from the order of the trial court denying its motion for attorney fees. Appellee/cross-appellant, Helen V. Wolfe (hereinafter referred to as "Wolfe") appeals from the order of the trial court denying her motion to execute, and granting summary judgment in favor of Peerless. For the reasons set forth below, we affirm. I. This appeal arises out of a divorce action between Wolfe and her former husband, Logan. The divorce judgment provided that Wolfe was to receive from Logan $9,411.00 in cash, a $5,000.00 bond, the proceeds of a savings account, the marital residence, and an automobile. Logan appealed this decision and was ordered to post a $10,000.00 supersedeas bond. The bond was obtained from Peerless. This court affirmed the judgment of the trial court in an opinion dated April 25, 1985. On June 10, 1985, Logan moved for an entry of judgment nunc pro tunc. On June 11, 1985, a hearing was held in the Painesville Municipal Court on Wolfe's motion to attach one of Logan's bank accounts (not the account awarded to Wolfe). The Painesville Municipal Court awarded Wolfe $9,411.00 plus interest and ordered that the balance of the funds, $3,010.00 be held pending the resolution of motions filed in Cuyahoga County Common Pleas Court. - 3 - On July 3, 1985, Wolfe filed a brief in opposition to Logan's June 10th motion, and further moved to reduce the award of the savings account to a specific money judgment and for attorney fees incurred in defending the original appeal. On August 2, 1985, the trial court, without ruling on the outstanding motions, released the Peerless bond. On August 23, 1985, the trial court entered an order vacating its August 2nd order and "reinstating" the Peerless bond. On May 13, 1986, the trial court granted Wolfe's motion to reduce the savings account award to a specific money amount, determining its value to be $3,900.00. The trial court also awarded Wolfe $5,000.00 attorney fees and ordered that the $3,010.00 held by the Painesville Municipal Court be applied to these awards. Finally, the trial court denied Logan's motion for judgment nunc pro tunc. On November 13, 1986, Wolfe filed a motion seeking execution on the Peerless bond. Peerless opposed the motion and sought sanctions and attorney fees for its defense of the motion for execution. On August 26, 1987, Peerless moved for summary judgment on Wolfe's motion to execute on the Peerless bond. Summary judgment was granted in favor of Peerless on September 20, 1988. The motions for sanctions and attorney fees were not ruled on at that time, but were later denied in the court's March 9, 1990 order. This appeal and cross-appeal timely follow. - 4 - II. Peerless has set forth the following assignments of error: "THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTIONS FOR ATTORNEY FEES FILED PURSUANT TO LOCAL RULE 21. "THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTIONS FOR ATTORNEY FEES FILED PURSUANT TO LOCAL RULE 11 OF THE OHIO RULES OF CIVIL PROCEDURE." These assignments of error share common issues of law and fact and will, therefore, be dealt with simultaneously. Peerless's motion for attorney fees was based upon its defense of Wolfe's motion to execute on the $10,000.00 supersedeas bond. Ohio has adopted the "American Rule" which does not permit a prevailing party to recover attorney fees in the absence of statutory authorization as part of the costs of litigation. Sorin v. Board of Edn. (1976), 46 Ohio St. 2d 177. The only exception to this general rule permits the prevailing party to recover attorney fees as part of the costs where the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. See Buller v. Respicare (1987), 39 Ohio App. 3d 17. When a litigant claims that the trial court has "abused its discretion" in denying or granting a motion for attorney fees, a reviewing court must examine the claim under the "totality of the circumstances." See Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217. Discretion is abused when a decision is arbitrary, fanciful, or unreasonable, or only when no reasonable person - 5 - would take the view adopted by the trial court. Sgro v. McDonalds Restaurant (1984), 21 Ohio App. 3d 41. Contrary to the assertions of Peerless in its brief, there is no record of Wolfe "admitting" that the trial court judgment had been paid in full prior to filing its motion to execute. The "admission" by Wolfe only states that it has received the funds held by the Painesville Municipal Court. At the time the motion was filed by Wolfe there were legitimate legal questions as to whether Wolfe was entitled, by virtue of the trial court's judgment, to more money than was being held by the Painesville Municipal Court. Therefore, we find that the Wolfe motion to execute on the "reinstated" Peerless bond was not filed in bad faith. In addition, Peerless has failed to follow the standards for a motion for attorney fees set forth in Loc. R. 21 of the Court of Common Pleas of Cuyahoga County, Domestic Relations Division. The Peerless motion failed to satisfy the requirements of Sections 2, 3, and 4 of that rule. For these reasons, we find that the trial court did not err in denying the Peerless motion for attorney fees. Peerless's assignments of error are overruled. III. For her first assignment of error, Wolfe contends that the trial court abused its discretion by denying her motion to extend - 6 - the time period for her to file a response to the Peerless motion for summary judgment. Peerless filed its motion for summary judgment on August 26, 1987. On September 28, 1987, Wolfe asked for, and was granted an extension until October 16, 1987, to respond to the Peerless motion for summary judgment. Wolfe cited only her counsel's "heavy trial schedule" as the reason necessitating delay. On October 8, 1987, Wolfe was granted another extension until November 2, 1987. On October 28, 1987, Wolfe once again moved for an extension, this time citing Peerless's refusal to comply with discovery requests as the reason an extension was needed. Wolfe filed her response to the summary judgment motion on November 3, 1987. The trial court formally denied the motion for an extension of time on November 4, 1987. Summary judgment was granted in favor of Peerless on September 20, 1988. The granting of continuances is within the sound discretion of the trial court and, absent an abuse of discretion on the part of the trial court, such a decision will not be reversed. See Sgro, supra; Blakemore, supra. The record before us reveals that Wolfe had received two continuances from the trial court prior to the denial of the motion in question. The record further reveals that the extension was requested so that the deposition of a Peerless employee could be taken. However, Wolfe's own affidavit in support of the motion for extension reveals that the parties were - 7 - not in disagreement over the availability of the witness or the location of the deposition. By this very affidavit, Wolfe demonstrates that proposals for a time of deposition by both parties indicate that an extension of time was not necessary for the completion of discovery. For these reasons, we find that the trial court did not abuse its discretion by denying Wolfe's motion for extension of time to respond to the Peerless motion for summary judgment. Wolfe's first assignment of error is overruled. IV. Wolfe's second and third assignments of error are as follows: "THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN GRANTING APPELLANT'S MOTION FOR SUMMARY JUDGMENT." "THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN DENYING APPELLEE'S MOTION FOR EXECUTION ON THE SUPERSEDEAS BOND." Wolfe's second and third assignments of error share a common basis in law and fact and will, therefore, be dealt with simultaneously. The trial court's decision dated September 20, 1988, denying Wolfe's motion to execute and granting summary judgment in favor of Peerless, was based upon its finding that the August 23, 1985 order "reinstating" the Peerless bond was void and unenforceable. We agree. - 8 - Title 2505 of the Ohio Revised Code provides the procedure for and rules governing the posting of a supersedeas bond. R.C. 2505.16 provides that in some instances a trial court may order that a bond be changed, renewed, or that a new bond be given. However, neither the Ohio Revised Code nor the Supreme Court of Ohio have expressed provisions for the "reinstatement" of a previously dismissed supersedeas bond. We are not inclined to do so for the first time without statutory mandate. We therefore find that the supersedeas bond provided by Peerless was permanently released by the trial court on August 2, 1985. Their being no bond upon which Wolfe could execute, the Wolfe motion was properly denied and summary judgment was properly granted in favor of Peerless. Wolfe's second and third assignments of error are overruled. Judgment affirmed. - 9 - It is ordered that appellee/cross-appellant recover of appellant/cross-appellee her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas, Domestic Relations Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, J., and HARPER, J., CONCUR. JOHN F. CORRIGAN PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .