[Cite as Spitzer v. Knapp , 2020-Ohio-399.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JOEL M. SPITZER JUDGES: Hon. W. Scott Gwin, P.J Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delane y , J. -vs- Case No. 19 CAE 08 0047 LISA KNAPP, et al., Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Courtof Common Pleas, Case No. 2017-CVH09-0571

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: Februar y

6, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellan t LUTHER L. LIGGETT, JR. GARY A. REEVE Graff and McGovern, LPA Law Offices of Gar y A. Reeve 604 E. Rich Stree t 5354 Cemeter y

Road Columbus, Ohio 432 15 Hilliard, Ohio 43026Delaware Count y , Case No. 19 CAE 08 0047 2

Hoffman, J. {¶1} Defendant-appellant Lisa F. Knapp appeals the July 17, 2019 Dec ision entered by the Delaware County Court of Common Pleas, which den ied her Motion for Frivolous Conduct Pursuant to R.C. 2323.51. Plaintiff-appellee is Joel M. Spitzer.

STATEMENT OF THE CASE 1 {¶2} On September 20, 2017, Appellee filed a complaint against Appel lant, Todd Daviso, and Susan Tobias for defamation, civil conspiracy, inva sion of privacy, libel, intimidation, intentional infliction of emotional distress, and for equitable relief. The trial court granted Susan Tobias' motion to dismiss on December 11, 2 017. Appellee dismissed Todd Daviso on January 30, 2018. The complaint allege d, at all relevant times, Appellee served as elected Fiscal Officer of Orange Township in Delaware, Ohio, and Appellant served as an elected trustee of Orange Township in De laware, Ohio. {¶3} Appellee filed an amended complaint against Appellant only on M arch 5, 2018. The amended complaint contained claims for defamation, to rtious interference with contract, and intentional inf liction of emotional distress. On March 19, 2018, Appellant filed a motion to dismiss the amended complaint pursuant to Civ il Rule 12(B)(6). Appellee filed a memo contra to Appellant's motion to dismiss and Appell ee filed a reply brief. Via Decision filed April 30, 2018, the trial court denied, in part, and granted, in part, Appellant’s motion. Appellant subsequently filed an answer to the amended complaint on May 17,

2018. {¶4} On August 24, 2018, Appellant filed a motion for summary judgme nt, which the trial court granted on December 20, 2018. Via Journal Entr y filed January 3, 2019,

1 A statement of the facts is unnecessary for our disposition of this appeal.Delaware Count y , Case No. 19 CAE 08 0047 3

the trial court declared its December 20, 2018 decision grantin g summary judgment a final appealable order. Appellee appealed the trial court’s de cision to this Court. This

Court affirmed. Spitzer v. Knapp , 5 th Dist. Delaware No. 19 CAE 01 0006, 2019 -Ohio2770 (“ Spitzer I ”). {¶5} On January 18, 2109, Appellant filed a motion for frivolous con duct pursuant to R.C. 2323.51, seeking an award of $29,553.14, the amount she expended in defending

the lawsuit. A ppellant argued Appellee “and his counsel engaged in frivolous, sanctionable conduct throughout the prosecution of this lawsuit ”, commencing on September 20, 2017, with the filing of a 96 paragraph, 100 page complaint. Appellee filed a memorandum contra on January 30, 2019, to which Appellant fil ed a reply. {¶6} Via Decision filed July 17, 2019, the trial court denied Appell ant’s motion. The trial court found, after reviewing its December 20, 2018 De cision granting Appellant’s motion for summary judgment as well as this Court’s Opinion in Spitzer I , supra, affirming that decision, Appellant “failed to prove that [Appellee’s] law suit was ‘wholly frivolous’ pursuant to R.C. 2323.51(B)(1).” July 17, 2019 Decision at 2. {¶7} It is from this decision Appellant appeals, raising the followi ng assignments

of error:

I. THE TRIAL COURT USED AN INCORRECT LEGAL STANDARD

IN RULING AGAINST DEFENDANT-APPELLANT LISA F. KNAPP’S(“KNAPP”) MOTION FOR FRIVOLOUS CONDUCT AGAINST PLAINTIFFAPPELLEE JOEL M. SPITZER, AND UNDER THE PROPER STANDARDDelaware Count y , Case No. 19 CAE 08 0047 4

KNAPP WOULD HAVE POTENTIALLY RECOVERED AFTER A HEARING

ON THE MERITS.

II. THE TRIAL COURT ABUSED ITS DISCRETION GENERALLY IN

RULING AGAINST DEFENDANT-APPELLANT LISA F. KNAPP’S(“KNAPP”) MOTION FOR FRIVOLOUS CONDUCT AGAINST PLAINTIFFAPPELLEE JOEL M. SPITZER AND NOT HOLDING AN EVIDENTIARY

HEARING ON THE MOTION.

I. {¶8} In her first assignment of error, Appellant asserts the trial c ourt applied the wrong legal standard in addressing her motion for frivolous con duct. {¶9} Pursuant to R.C. 2323.51(B)(1), “at any time not more than thir ty days after the entry of final judgment in a civil action * * *, any party adversely affected by frivolous conduct may file a motion for an award of court costs, reasonab le attorney's fees, and other reasonable expenses incurred in connection with a civil a ction * * *.” The award may be made “against a party, the party's counsel of record, or bot h.” R.C. 2323.51(B)(4). {¶10} “Conduct” includes “[t]he filing of a civil action, the asserti on of a claim, defense, or other position in connection with a civil action, t he filing of a pleading, motion, or other paper in a civil action, * * * or the taking of any ot her action in connection with a civil action[.]” R.C. 2323.51(A)(1)(a). {¶11} “Frivolous conduct” is defined as conduct of a party to a civil action which satisfies any of the following:Delaware Count y , Case No. 19 CAE 08 0047 5

(i) 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 n eedless increase in the cost of litigation. (ii) It is not warranted under existing law, cannot be supporte d 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 es tablishment

of new law. (iii) The conduct consists of allegations or other factual cont entions that have no evidentiary support or, if specifically so identif ied, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. (iv) The conduct consists of denials or factual contentions tha t are not warranted by the evidence or, if specifically so identified , are not reasonably based on a lack of information or belief. R.C. 2323.51(A)(2)(a)(i) through (iv).

{¶12} “Frivolous conduct is not proved merely by winning a legal batt le or by proving that a party's factual assertions were incorrect.” Harris v. Rossi, 11th Dist. Trumbull No. 2016-T-0014, 2016-Ohio-7163, ¶ 18. “A party is no t frivolous merely because a claim is not well-grounded in fact. * * * [R.C. 2323. 51] was designed to chill egregious, overzealous, unjustifiable, and frivolous action. * * * [A] claim is frivolous if it is absolutely clear under the existing law that no reasonable lawy er could argue the claim.”Delaware Count y , Case No. 19 CAE 08 0047 6

Ohio Power Co. v. Ogle, 4th Dist. Hocking No. 12CA14, 2013–Ohio–1745, ¶ 29–30 (Citation omitted). {¶13} R.C. 2323.51 uses an objective standard in determining whether sanctions may be imposed for frivolous conduct. Kester v. Rogers, 11th Dist. Lake Nos. 93–L–056 and 93–L–072, *10 (May 6, 1994). Thus, a finding of frivolous c onduct under R.C. 2323.51 is decided without inquiry as to what the individual knew or be lieved, and instead asks whether a reasonable lawyer would have brought the action in li ght of existing law. Omerza v. Bryant & Stratton, 11th Dist. Lake No. 2006–L–147, 2007–Ohio–5216, ¶ 15 (Citation omitted). {¶14} “Whether particular conduct is frivolous may be either a factua l or a legal determination. * * * A trial court's factual finding that a par ty's conduct was [or was not] frivolous will not be disturbed where the record contains compe tent, credible evidence to support the court's determination. * * * In contrast, whether a pleading is warranted under existing law or can be supported by a good-faith argument for a n extension, modification, or reversal of existing law is a question of law, which is revi ewed de novo.” Swartz v.

Hendrix , 2d Dist. Darke No. 2010-CA-18, 2011-Ohio-3422, ¶ 22, citing Foland v. Englewood , 2d Dist. Montgomery No. 22940, 2010-Ohio-1905, ¶ 32. {¶15} Although the trial court concluded Appellant failed to prove Ap pellee’s lawsuit was “wholly frivolous”, we disagree with Appellant’s as sertion the trial court applied the wrong legal standard in reaching its decision. The trial court set forth the correct statutory definition of “frivolous conduct” provided in R.C. 2323.51(A)(2). The trial court also indicated it had reviewed this Court’s 24 page Opini on in Spitzer I , supra, as well as its own prior decision. By noting the length of the Spitzer I decision, the trial courtDelaware Count y , Case No. 19 CAE 08 0047 7

suggests Appellee’s lawsuit had some merit. We find the trial c ourt's use of the term “wholly frivolous” appears to be a colloquial, rather than a te chnical, reference. Accordingly, we find no error in the standard applied by the tr ial court in its decision to deny Appellant’s motion for frivolous conduct. {¶16} Appellant’s first assignment of error is overruled.

II. {¶17} In her second assignment of error, Appellant contends the trial court abused its discretion in failing to con duct a hearing on her motion. We disagree. {¶18} In order to award sanctions, R.C. 2323.51(B)(2)(a) requires a t rial court to set a date for a hearing to determine whether the conduct was f rivolous and whether the frivolous conduct adversely affected a party to the action. The trial court must provide notice of the hearing to each party or counsel of record who al legedly engaged in the frivolous conduct and to any party who was allegedly adversely affected by the frivolous conduct. R.C. 2323.51(B)(2)(b). The trial court must then condu ct a hearing at which the court “allows the parties and counsel of record involved to pre sent any relevant evidence, including evidence of reasonable attorney's fees. R.C. 2323.51( B)(2)(c) and 2323.51(B)(5)(a). See, Hunt v. Allen, 5th Dist. No. 11–CA70, 2012–Ohio–1212, ¶ 31. {¶19} Although R.C. 2323.51 requires a trial court to conduct a heari ng before awarding attorney fees, a hearing is not required when the cour t determines, upon consideration of the motion and in its discretion, the motion l acks merit. Armatas v. Aultman Hosp. , Stark App. No. 2018 CA 00126, 2019 -Ohio- 947; Galena v. Delaware Cty. Regional Planning Comm., 5th Dist. Delaware No. 2011–CAE–07–0068, 2012– Ohio–182, ¶ 28 (Delaney, J. dissenting), citing Shields v. City of Englewood, 172 OhioDelaware Count y , Case No. 19 CAE 08 0047 8

App.3d 620, 2007–Ohio–3165, 876 N.E.2d 972 (2nd Dist.); McKinney v. Aultman Hosp. (Apr. 27, 1992), Stark App. No. CA 8603, 1992 WL 100451. {¶20} To reiterate, a trial court must schedule a hearing only on those motions which demonstrate arguable merit. If the trial court determine s there is no basis for the imposition of sanctions, it may deny the motion without hearing

. Galena , supra at ¶ 12. Such a determination is subject to the sound discretion of the trial court. Id. at ¶ 15. {¶21} Because the trial court determined there was no basis for the i mposition of sanctions against Appellee, we find no abuse of discretion in i ts failure to conduct a hearing. {¶22} Appellant’s second assignment of error is overruled. {¶23} The judgment of the Delaware County Court of Appeals is affirme d.

By: Hoffman, P.J. W. Scott Gwin, P.J. and Delaney, J. concur